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The 2003 Amendments to the Florida APA

Administrative Law

A noted administrative law scholar once characterized the quest for an administrative procedure as a “hardy perennial.”1 T his certainly appears to be the case in Florida, for during the 2003 Regular Session, the Florida Legislature enacted yet another measure that amends Florida’s Administrative Procedure Act (APA).2 T his bill, CS/CS/SB 1584,3 g enerally is designed to minimize unnecessary delays in the administrative hearing process and to address several recent court decisions interpreting earlier amendments to the APA. The bill is somewhat similar to bills that were considered in prior years,4 b ut, unlike some of the prior versions, it does not affect who may request an administrative hearing.5 T his article summarizes some of the key provisions.

Clarifies Grounds for Challenging Rules. The bill clarifies the grounds for challenging rules by revising the definition of “invalid exercise of delegated legislative authority” in §120.52(8) in two related respects.

A rule is an invalid exercise of delegated legislative authority if it is, among other things, “arbitrary or capricious.”6 T he bill defines the terms “arbitrary” and “capricious” as follows: A rule is “arbitrary” if it is not supported by logic or the necessary facts; a rule is “capricious” if it is adopted without thought or reason or is irrational.7

Significantly, the new definition makes clear that a rule is “arbitrary”—and therefore invalid—if it is not supported by “the necessary facts.”8 T his change is designed to retain the requirement that the factual predicate, if any, for a rule must be established,9 a nd to allow the elimination of the existing, but apparently confusing, language that provides that a rule is invalid if it is not supported by “competent substantial evidence.”10 I n particular, the elimination of this “competent substantial evidence” language is aimed at resolving the confusion recognized by the court in Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So. 2d 243, 256 (Fla. 1st DCA 2002), regarding whether “competent substantial evidence” is a standard of proof or a standard of review.11

The bill also makes identical changes to §120.57(1)(e), which describes what an agency must “prove up” when it applies an unadopted rule.12

Confirms De Novo Nature of Rule Challenge Proceedings. Likewise, the bill amends §120.56(1) to make clear that proceedings before the administrative law judge (ALJ) are de novo ,13 a nd the bill thereby addresses the Florida Board of Medicine decision to the extent that it suggests otherwise.14 T he bill also confirms that the standard of proof in all rule challenge proceedings is a preponderance of the evidence.15

Taken together, it seems clear that these changes do not in any way lessen the grounds for determining a rule to be invalid; indeed, they may well make it easier for a petitioner to successfully challenge a rule and more difficult for an agency to defend the challenged rule. In some cases, de novo review will benefit the agency, because the agency is not constrained by the evidence that it can demonstrate was actually before it during rulemaking (or included in the rule-making record16 ), but is free to offer new evidence that supports the rule before the ALJ, even if not initially considered.

Revises Contents of Petition. The bill makes minor changes to the contents of a petition for hearing so that the other parties are better informed at an early date of the petitioner’s objections. Specifically, the bill amends §120.54(5) to require that the petition also include an explanation of how the alleged facts relate to the cited rules or statutes.17

Confirms Burden of Proof in Challenges to Existing Rules. The bill revises §120.56 to provide that the petitioner has the burden of proof in cases involving challenges to existing rules.18 T his is consistent with prior court rulings, including SJRWMD v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 76 (Fla. 1st DCA 1998).19 T he agency retains the burden of proof in challenges to proposed rules.20

Clarifies Challenges to Agency Statements. The bill amends §120.56(4) to clarify procedures for administrative challenges to an agency statement that is defined as a rule.21 T he bill affirmatively establishes a clear presumption that the agency is acting expeditiously and in good faith if the agency publishes a proposed rule prior to the final hearing. The bill also requires the ALJ to hold in abeyance the challenge to an agency statement while the agency seeks to adopt a proposed rule addressing the challenged agency statement. Finally, the bill makes clear that, if the proposed rule addressing a challenged agency statement is determined to be invalid, then the agency must immediately discontinue reliance on the challenged agency statement. Some of these changes address issues raised by the court’s decision in Osceola Fish Farmers Association, Inc. v. SFWMD, 830 So. 2d 932 (Fla. 4th DCA 2002).22

Requires Initial Scheduling Order. The bill amends §120.569 to require the ALJ, upon request, to enter an initial scheduling order to facilitate the just, speedy and inexpensive determination of the proceeding.23 I t has been DOAH’s practice to routinely enter initial orders in all cases, but the amended statute expressly requires the ALJ to enter such an order upon the request of any party, and it expressly requires the order to establish a discovery period, including a deadline by which all discovery shall be completed, and the date by which the parties shall identify expert witnesses and their opinions. The initial scheduling order also may require the parties to meet and file a joint report (or pre-hearing stipulation) by a date certain.

Authorizes Motion to Relinquish Jurisdiction. The bill makes minor changes to §120.57(1)(i), which authorizes the ALJ to relinquish jurisdiction to the agency when it appears there is no genuine issue as to any material fact.24 T his is somewhat akin to a motion for summary judgment in that it is designed to expedite administrative proceedings by avoiding unnecessary formal (fact-finding) hearings. For example, in one recent case, the ALJ relied on this provision to enter an order closing file and relinquishing jurisdiction because there no longer was any factual dispute as to the petitioner’s standing.25

Rulings on Exceptions. The bill amends §120.57 to authorize the agency to decline to rule on exceptions that do not clearly identify the disputed portion of the recommended order, that do not identify the legal basis for the exception, or that do not include specific citations to the record.26 H eretofore, agencies were expected to rule on each exception, regardless of how clearly written or supported in the record.27

Restores “Default” Language. The bill effectively restores to §120.60 the pre-1996 language that provides that a license application is considered approved without further action by the agency if the agency fails to act on the application within the prescribed time periods, thus avoiding unnecessary judicial proceedings to compel the agency to issue the license.28 H owever, the new language expressly authorizes the “default” permit to include such reasonable conditions as are authorized by law.29 I t also requires any applicant seeking to claim licensure by default to notify the agency clerk in writing, and it prohibits the applicant from taking any action based upon the default license until after receipt of such notice by the agency clerk. Finally, a default license is not considered approved if a recommended order has been entered and it recommends that the agency deny the license.30

Authorizes Direct Appeals of Emergency Rules. Direct appeals of agency rules were limited in 1992.31 T he bill clarifies this provision limiting direct appeals by conforming §120.68 to another statutory provision, §120.54(4), which expressly provides that an agency’s findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.32

Authorizes Attorneys’ Fees and Damages Under §57.105. One of the more controversial provisions in the bill seeks to minimize unnecessary delays in the administrative hearing process by discouraging unsupported claims and dilatory actions.33 T he bill does so by amending §57.105 to make clear that it also applies to administrative proceedings.34 A s amended, §57.105 requires the ALJ to award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in Subsections (1) through (4). Such award by the ALJ is a final order subject to judicial review. If the losing party is an agency, then the award to the prevailing party shall be against and shall be paid completely by the agency and not the agency attorney.35

The referenced subsections (1) through (4) require the court to award a reasonable attorney’s fee on any claim or defense at any time during a proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of then-existing law to those material facts.36 L ikewise, these subsections authorize an award of damages for any action that was taken primarily for the purpose of unreasonable delay.37

The legislature was aware that the APA already contains several provisions providing for attorneys’ fees.38 T wo of these provisions are designed to discourage behavior that is for an “improper purpose.”39 B oth sections contain a similar, if not identical, definition of “improper purpose.”40 H owever, it appears that ALJs (and reviewing courts) have been reluctant to assess fees under these “improper purpose” statutes. 41

making the provisions of §57.105 expressly applicable to administrative proceedings, the legislature clearly has expanded the grounds for sanctions from simply “improper purpose” to both unsupported claims and dilatory tactics. As such, it seems obvious that the legislature intended to authorize—indeed require —ALJs to make more liberal use of fees and sanctions to discourage both unsupported claims and dilatory actions.

This new attorneys’ fee provision also makes clear that a voluntary dismissal by a nonprevailing party does not divest the ALJ of jurisdiction to make the described award.42 T his language was added to address two administrative decisions in which the ALJ had ruled that he did not have statutory authority to enter a recommended order addressing entitlement to attorneys’ fees and costs when the underlying matter has been voluntarily dismissed.43

Increases Fees Available Under Equal Access to Justice Act. The bill increases from $15,000 to $50,000 the limit on attorneys’ fees that may be awarded to a prevailing small business in an adjudicatory or administrative proceeding initiated by a state agency under §57.111, the Equal Access to Justice Act.44 T his change should not affect many cases, as an agency is not liable under that act for such fees or costs if the agency’s actions were substantially justified or special circumstances exist that would make the award unjust. The bill also amends the attorneys’ fees provisions in the APA, §120.595, to add a cross reference to §57.105 and §57.111.45

Provides for Expedited Rulemaking for Adoption of ERP rules. The bill amends §120.54 to establish an expedited rule-making process that may be used by the Department of Environmental Protection and the water management districts to update cross references to the other agency’s Environmental Resource Permitting rules already incorporated by reference.46 This provision is modeled after two existing provisions that provide an expedited process for the adoption of federal standards, §120.54(6) and §403.8055.47

Agency Authority to Reject or Modify Conclusions of Law. Some issues were left unaddressed. Earlier versions of the bill also would have revised §120.57(1)(d) to repeal a provision added in 1996 that limits the agency’s authority to reject or modify conclusions of law not within the agency’s substantive jurisdiction (such as evidentiary rulings). The effect would have been to allow agencies to again reject of modify conclusions of law not within their substantive jurisdiction.48 T his revision was proposed to obviate the need to respond to the court’s request in Barfield v. DOH, 805 So. 2d 1008, 1013 (Fla. 1st D.C.A. 2001)., that the legislature identify a specific appellate remedy for an agency that considers itself aggrieved by an ALJ’s conclusions of law that are beyond the agency’s substantive jurisdiction.49 T hese earlier versions of the bill would have discouraged the agency’s rejection or modification of such conclusions of law by requiring a reviewing court to award attorney’s fees to the prevailing appellant if the court finds that the agency improperly rejected or modified a conclusion of law or an interpretation of an administrative rule over which the agency does not have substantive jurisdiction.50 H owever, this issue proved very controversial, so these provisions were deleted from the bill.51

Conclusion

The 2003 amendments to the APA are largely intended to minimize delays in the administrative process and to address several recent court decisions. It will be interesting to see whether these recent amendments to the APA themselves will spawn new court decisions that in turn require further legislative attention.52

1 Arthur E. Bonfield, The Quest for an Ideal State Administrative Rulemaking Procedure, 18 Fla. St. U. L. Rev. 617, 617 (1991).

2 Significant amendments to the APA were adopted most recently in 1999. David M. Greenbaum and Lawrence E. Sellers, Jr., 1999 Amendments to the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing?, 28 Fla. L. Rev. 499 (2000).

3 2003 Fla. Laws ch. 94. SB 1584 was sponsored in the Senate by Senator David Aronberg (Dem. Greenacres). The House companion, HB 23, was sponsored by Representative Joe Spratt (Rep. Sebring). Representative Spratt previously has sponsored legislation amending the APA, including HB 257 (2002), an earlier version of the 2003 bill, and HB 1509 (1997), another bill designed to minimize delays in the administrative hearing process. The provisions of HB 1509 ultimately were enacted in SB 1440, 98 Fla. Laws ch. 200.

4 E.g., HB 257 and SB 280 (2002); HB 1135 and SB 910 (2001); HB 2023 and SB 2557 (2000).

5 Nonetheless, some environmental activists characterized the bill as “the evil twin” of a similar bill that passed in 2002, apparently referring to Ch. 2002-261, which clarifies citizen standing under Fla. Stat. §403.412(5). Greg Martin, Aronberg Bill to Limit Citizen Suits, Charlotte Sun-Herald, May 1, 2003. For a discussion of the 2002 legislation, see Lawrence E. Sellers and Cathy M. Sellers, ‘Intervene’ Means ‘Intervene’: The Florida Legislature Revises Citizen Standing Under § 403.412(5), 76 Fla. B.J. 63 (Nov. 2002) (discussing 2002 Fla. Laws ch. 261).

6 See Fla. Stat. §120.52(8)(e).

7 2003 Fla. Laws ch. 94 §1, amending Fla. Stat. §120.52(8)(e). The definitions are taken in part from prior court decisions. E.g., Agrico Chemical Co. v. DER, 365 So.2d 759, 763 (Fla. 1st D.C.A. 1978). However, there is one significant difference: Prior cases have defined an “arbitrary” decision as one “not supported by facts or logic, or despotic.” Id. at 763. However, the bill defines “arbitrary” as not supported by logic or the necessary facts. And although the language is generally borrowed from case law that uses the disjunctive “or,” it seems clear that the conjunctive “and” is intended so that a rule will be arbitrary if it is not supported by both logic and the necessary facts.

8 An example of a case in which the agency demonstrated that the challenged rule was not arbitrary because it was supported by the necessary facts is Austin v. DHRS, 495 So. 2d 777 (Fla. 1st D.C.A. 1986). The challenged rule defined non-cooperation to include situations where a mother identifies one or more men as putative fathers, but HLA or other scientific tests indicate that none of the persons identified could in fact have been the father of the child. The hearing officer found that expert testimony and other evidence presented at the hearing established that HLA and other blood tests referenced in the rule are reliable means of excluding wrongfully accused putative fathers. The hearing officer therefore upheld the challenged rule against claims that it was arbitrary, and the court affirmed. In contrast, the agency’s prior efforts to apply the “unadopted” version of this same rule were unsuccessful because the agency had failed to present “competent, substantial evidence” of the accuracy of the HLA blood test. Amos v. DHRS, 444 So.2d 43, 46 n.4 (Fla. 1st D.C.A. 1983).

9 Edwin A. Bayô and John R. Rimes, Who Goes First and What is “Competent Substantial Evidence” in a Proposed Rule Challenge?, 73 Fla. B. J. 62, 64 (Jan. 1999) (“When an agency has based its proposed rules on factual assumptions which are ‘susceptible to proof by ordinary means’ then, when challenged on its factual assumptions, the agency has (and should have) the burden of persuading the administrative law judge that its factual assumptions and conclusions are more likely to be correct than those of the challenger”).

10 2003 Fla. Laws ch. 94 §1, deleting Fla. Stat. §120.52(8)(f). The “competent substantial evidence” language was added to the definition of “invalid exercise of delegated legislative authority” in 1996. See Lawrence E. Sellers, Jr., The Third Time’s the Charm: Florida Finally Enacts Rulemaking Reform, 48 Fla. L. Rev. 93, 131–32 (1996).

11 For a discussion of the Florida Board of Medicine decision, see Donna E. Blanton, Competent and Substantial Evidence in Rule Challenges: A Standard of Proof or Standard of Review?, Admin. Law Section Newsletter (Sept. 2002). For some interesting observations regarding the court’s decision, see Judge Kent Wetherell’s final order in Levy v. Department of Health, Board of Osteopathic Medicine, DOAH Case No. 02-002308RX (Final Order entered Dec. 3, 2002), and particularly note 14 at pp. 57-58, appeal pending, Case No. 1D02-5288.

12 2003 Fla. Laws ch. 94 §5, amending Fla. Stat. §120.57(1)(e)2.d. & f. For a description of the limits on agency reliance on nonrule policies, see Wade L. Hopping, Lawrence E. Sellers and Kent Wetherell, Rulemaking Reforms and Nonrule Policies: A “Catch-22” for State Agencies?, 71 Fla. B.J. 20 (March 1997); Wade L. Hopping and Kent Wetherell, The Legislature Tweaks McDonald (Again): The New Restrictions on the Use of “Unadopted Rules” and “Incipient Policies” by Agencies in Florida’s Administrative Procedure Act, 48 Fla. L. Rev. 135 (1996).

13 2003 Fla. Laws ch. 94 §3, amending Fla. Stat. §120.56(1)(e).

14 The court characterized a rule challenge as “technically a de novo proceeding.” 808 So. 2d at 257–58. making it clear that rule challenge proceedings are in fact de novo proceedings, it also should be obvious that evidence regarding whether the challenged rule is invalid is not limited to that contained in the rulemaking record before the agency.

15 2003 Fla. Laws ch. 94 §3, amending Fla. Stat. §120.56(1)(e). The 1999 amendments to the APA already established that the standard of proof in proposed rule challenges is a preponderance of the evidence. David M. Greenbaum and Lawrence E. Sellers, Jr., 1999 Amendments to the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing?, 28 Fla. L. Rev. 499, 519 (2000).

16 Fla. Stat. §120.54(8) describes what is to be included in the rulemaking record. This provision is probably of value only in cases involving direct appeals from the adoption of a rule. However, as explained in note 30, such appeals now are greatly restricted.

17 2003 Fla. Laws ch. 94 §2, amending Fla. Stat. §120.54(5)(b)4.f. In prior years, similar proposed legislation would have required the petition to state “with particularity” the required information, “including a reference to the specific section, subsection, paragraph, or subparagraph, as appropriate” the petitioner contends require reversal or modification of the agency’s proposed action. E.g., HB 257 (2002). These changes proved controversial, and were not included in this year’s version of the bill. Parenthetically, an appellate court recently interpreted the existing uniform rule to mean that a petition need not state the specific statutory section numbers or rule provision numbers that are allegedly being violated. Accardi v. DEP, 824 So. 2d 992 (Fla. 4th D.C.A. 2002).

18 2003 Fla. Laws ch. 94 §3, amending Fla. Stat. §120.56(3)(a).

19 See also Dravo Basic Materials Co., Inc. v. DOT, 602 So. 2d 632 (Fla. 2d D.C.A. 1992); Agrico Chemical Co. v. DER, 365 So. 2d 759 (Fla. 1st D.C.A. 1978).

20 Fla. Stat. §120.56(2)(d). In addition, existing rules are presumed valid. See Lawrence E. Sellers, Jr., The Third Time’s the Charm: Florida Finally Enacts Rulemaking Reform, 48 Fla. L. Rev. 93, 124 n.191 (1996).

21 2003 Fla. Laws ch. 94 §3, amending Fla. Stat. §120.56(4)(e).

22 For a discussion of this decision, as well as recommendations for legislative changes, see Cathy M. Sellers and Lawrence E. Sellers, Jr., “OFFA v. SWFWMD—Agencies Need Not Successfully Adopt a Challenged Statement to Avoid a Final Order and Attorneys’ Fees, 24 Admin. Law Section Newsletter (March 2003).

23 2003 Fla. Laws ch. 94 §4, adding a new paragraph (o) to Fla. Stat. §120.569(2).

24 2003 Fla. Laws ch. 94 §5, amending Fla. Stat. §120.57(1)(i).

25 See Calabria v. DEP, DOAH Case No. 03-0320 (May 2, 2003).

26 2003 Fla. Laws ch. 94 §5, amending Fla. Stat. §120.57(1)(k).

27 Iturralde v. Department of Professional Regulation, 484 So. 2d 1315, 1316 (Fla. 1st D.C.A. 1986); Lloyd v. Department of Professional Regulation, 473 So. 2d 720 (Fla. 4th D.C.A. 1985). But at least one case recognized an “exception” for exceptions that merely reiterate positions that were repeatedly asserted before the ALJ, and that were clearly and specifically addressed in the recommended order. Britt v. Department of Professional Regulation, 492 So. 2d 697, 699–700 (Fla. 1st D.C.A.), disapproved on other grounds, Department of Professional Regulation v. Bernal, 531 So. 2d 967 (Fla. 1988).

28 2003 Fla. Laws ch. 94 §7, amending Fla. Stat. §120.60(1). Prior to 1996, the APA provided that the license was “deemed approved” if the agency failed to act on the application within the applicable time limits. In 1996, the language was changed to simply provide that “the agency must approve” any application if it is not approved or denied within the prescribed time periods. There appears to be no explanation for this change, although one article characterizes the 1996 changes to this section as “technical.” See Deborah K. Kearney and Kent Wetherell, The Practitioner’s “Road Maps” to the Revised APA, 71 Fla. B.J. 53, 68 (March 1997).

29 The attorney general previously opined that an agency may place standard conditions in a default license issued pursuant to Fla. Stat. §120.60. Op. Atty. Gen. 078-169 (Dec. 29, 1978). See also Tuten v. DEP, 819 So. 2d 187 (Fla. 4th D.C.A. 2002); ManaSota-88, Inc. v. Agrico Chemical Company, 576 So.2d 781, 783 (Fla. 2d D.C.A. 1991).

30 An application for license must be approved or denied within 45 days after a recommended order is submitted to the agencies and the parties. Fla. Stat. §120.60(1).

31 1992 Fla. Laws ch. 166, creating Fla. Stat. §120.68(15) (now §120.68(9)). This limitation on direct appeals has the effect of eliminating direct appeals such as those in ManaSota-88 v. DER, 567 So. 2d 895 (Fla. 1st D.C.A. 1990) (direct appeal from adoption of secondary groundwater quality standards). For a discussion of this change, see Stephen T. Maher, The 1991 and 1992 Amendments to the Florida Administrative Procedure Act, 20 Fla. St. U. L. Rev. 367, 430–35 (1992) (describing this change as “Adam Smith’s Revenge”).

32 2003 Fla. Laws ch. 94 §8, amending Fla. Stat. §120.68(9).

33 2003 Fla. Laws ch. 94 §9. Several environmental interest groups urged the Governor to veto the bill because of their concerns about this new provision. See letter dated June 2, 2003, from Sierra Club, Florida Chapter, to Governor Jeb Bush.

34 2003 Fla. Laws ch. 94 §9, creating a new subsection (5) of §57.105. A footnote in an appellate decision had stated that § 57.105 did not apply to administrative proceedings. Procacci Commercial Realty v. DHRS, 690 So. 2d 603, 607 n.8 (Fla. 1st D.C.A. 1997).

35 Some agency lawyers objected to the bill as originally filed to the extent that it would make an agency attorney responsible for payment of attorneys’ fees in administrative proceedings. Accordingly, this provision was revised to provide that, if the losing party is an agency, then the award to the prevailing party shall be against and shall be paid wholly by the agency. However, agency attorneys remain potentially liable for attorney’s fees under §57.105 in proceedings other than administrative proceedings. See Fla. Stat. §57.105(1). They also remain subject to the Rules of Professional Conduct, including Rule 4-3.1, Meritorious Claims and Contentions (“a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law”).

36 See Fla. Stat. §57.105(1). For a discussion of §57.105, see Gary S. Gaffney and Scott A. Mager, Section 57.105’s New Look: The Florida Legislature Encourages Courts to Sanction Unsupported Claims and Dilatory Actions, 76 Fla. B. J. 8 (April 2002). See also John P. Fenner, New §57.105 Lawyer Sanctions, Our Ethics, and the Florida Constitution: Recent Developments and a Respectful Dissent, 77 Fla. B.J. 26 (May 2003).

37 See Fla. Stat. §57.105(3).

38 For a discussion of some of these provisions, see Martha J. Edenfield, Attorneys’ Fees and Costs, 71 Fla. B.J. 73 (March 1997); Elizabeth C. Williamson, The 1996 Florida Administrative Procedure Act’s Attorney’s Fees Reforms: Creating Innovative Solutions or New Problems?, 24 Fla. St. U L. Rev. 283 (1997).

39 One provision, §120.569(2)(e), seeks to discourage dilatory or abusive tactics and to streamline the litigation process by providing for certain sanctions, including a discretionary award of attorneys’ fees, when a pleading, motion, or other paper is signed and filed for an “improper purpose.” The second provision, §120.595(1), is designed to shift the cost of participation in a formal administrative proceeding to the non-prevailing party, if the nonprevailing party participated in the proceeding for an “improper purpose.” Burke v. Harbor Estates Assoc., 591 So. 2d 1034, 1036–37 (Fla. 1st D.C.A. 1991).

40 The term “improper purpose” is defined in §120.569(2)(e) by example: “such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation.” The term is defined in §120.595(1)(e) to mean participation in a proceeding pursuant to §120.57(1) primarily to harass or cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity. This latter definition was amended by the bill to include an increase in the cost of litigation. See 2003 Fla. Laws ch. 94 §6.

41 For example, in Friends of Nassau County, Inc. v. Nassau County, 752 So. 2d 42 (Fla. 1st D.C.A. 2000), the court reversed the ALJ’s order assessing fees against the lawyers representing the petitioner even though the petitioner, “Friends of Nassau County,” was created on the day the petition was filed by individuals who were associated with business competitors of the applicant and, even though the action was voluntarily dismissed prior to hearing and the ALJ found that the applicant’s competitor gained a competitive advantage because of the delay caused by the challenge to the applicant’s permit. The final order had ordered the petitioner, its attorneys, and its sole officer and director, to pay attorneys’ fees and costs. Friends of Nassau County v. Fisher Development Company, DOAH Case Nos. 96-3826, -3827, and -3828 (Final Order entered October 13, 1998). On appeal, the court, applying an objectively reasonable standard, found that the moving parties did not carry their burden of showing that those signing the petitions lacked legal justification for doing so where legal counsel was entitled to rely, and did rely, on the opinion of experts. 752 So. 2d at 52.

One of the few reported cases in which the ALJ imposed, and the appellate court affirmed the imposition of, attorneys’ fees is Burke v. Harbor Estates Associates, 591 So. 2d 1034 (Fla. 1st D.C.A. 1991). Subsequently, it appears that many ALJs have been unwilling to assess attorneys’ fees under the “improper purpose” statutes unless the complained of behavior is very similar to (or worse than) that described in the Burke case. E.g., Behrens v. Boran and SWFWMD, DOAH Case No. 02-0282 (Recommended Order entered July 29, 2002); Save Our Bays, Air and Canals, Inc. v. Tampa Bay Desal and DEP, DOAH Case Nos. 01-1949 and 01-2720 (Recommended Order dated Oct. 17, 2001).

42 2003 Fla. Laws ch. 94 §9, creating a new subsection (5) of Fla. Stat. §57.105.

43 See Orange City v. G.E.L. Corp. and DEP, DOAH Case No. 01-4132 (Recommended Order entered October 22, 2002) [ER FALR 03:046] (DEP Final Order entered December 3, 2002), appeal pending, G.E.L. Corp. v. DEP, Case No. 5D03-13 (Notice of Appeal filed January 2, 2003); Joyner and Manning v. Leon County and DEP, DOAH Case No. 00-4220 (April 4, 2001).

44 2003 Fla. Laws ch. 94 §10, amending Fla. Stat. §57.111(4)(d)2.

45 2003 Fla. Laws ch. 94 §6, adding a new subsection (6) to Fla. Stat. §120.595. See also §120.595(1)(a). The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings).

46 2003 Fla. Laws ch. 94 §2, amending Fla. Stat. §120.54(1)(i).

47 This provision is somewhat different in that the agency does not have the authority under this subparagraph to adopt any portions of the proposed rule to which a substantially affected person timely objects; the other two cited provisions allow the agency to ignore objections determined to be frivolous. E.g., §120.54(6)(c).

48 E.g., §5, CS/HB 23, amending Fla. Stat. §120.57(1)(l).

49 For a discussion of the Barfield decision, see Lisa S. Nelson, Insulated From Review: Barfield v. Department of Health, Board of Dentistry, 23 Admin. Law Section Newsletter (March 2002); Robert P. Smith, Be Not Amazed! At The Lessons of Barfield v. Department of Health, Board of Dentistry, 23 Admin. Law Section Newsletter (June 2002).

50 §4, HB 23, amending Fla. Stat. §120.595(5) (providing that the court may award fees and costs of the appeal); §6, CS/HB 23, amending Fla. Stat. §120.595(5) (providing that the court shall award fees and costs for the administrative proceeding and the appellate proceeding).

51 Some continue to argue that the existing provision is unconstitutional. See Smith, supra note 49. If this provision is in fact held unconstitutional, the legislature presumably would be free to enact these more controversial changes described in the preceding footnote, and it may well choose to do so.

52 E.g., SWFWMD v. Save the Manatee Club, Inc., 773 So. 2d 594, 598 (Fla. 1st D.C.A. 2000) (recognizing that the legislature revised the APA in 1999 to address the court’s prior decision in SJRWMD v. Consolidated Tomoka Land Co., 717 So. 2d 72 (Fla. 1st D.C.A. 1998), which had interpreted the 1996 amendments to the APA); Barfield v. DOH, 805 So. 2d 1008, 1011 (Fla. 1st D.C.A. 2001) (recognizing that the legislature revised the APA in 1999 to address the court’s prior decision in DCF v. Morman, 715 So. 2d 1076, 1077 (Fla. 1st D.C.A. 1998), which had interpreted the 1996 amendments to §120.57(1)(l); David M. Greenbaum and Lawrence E. Sellers, Jr., 1999 Amendments to the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing?, 27 Fla. St. U. L. Rev. 499, 507–09, 520–21 (2000).

Lawrence E. Sellers, Jr., is a partner with Holland & Knight, LLP, in the firm’s Tallahassee office. He received his J.D., with honors, from the University of Florida College of Law.
This column is submitted on behalf of the Administrative Law Section, Donna E. Blanton, chair, and Richard M. Ellis, editor.

Administrative Law