The Evolution of Declaratory Statements
The Florida Administrative Procedure Act contains a seemingly straightforward remedy for persons in need of state agency guidance regarding interpretation of an agency’s regulatory response to a particular fact pattern. A declaratory statement may be requested pursuant to F.S. §120.565, which reads: “(1) Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.” This article reviews three areas of significant change with respect to the availability and scope of declaratory statements: 1) the requirement for a present case or controversy; 2) the requirement that the statement not be a rule; and 3) the requirement that the petitioner have standing. The unfortunate conclusion is that no one—agencies, petitioners, no one—knows the proper scope of a declaratory statement at present.
Present Case or Controversy
Declaratory statements have been authorized by the Florida Administrative Procedure Act since its enactment in 1974.1 Early on, appellate decisions construing the availability of declaratory statements looked to the declaratory judgment statute for guidance.2 In 1979, in Couch v. State, 377 So. 2d 32, 33 (Fla. 1st DCA 1979), the court stated:
Owing to the similarity of declaratory statement proceedings under the Administrative Procedures Act and declaratory judgments under Chapter 86, Florida Statutes, we are of the opinion that in determining the availability and scope of the remedies under the former, we may be guided by decisions under the declaratory judgments statute. It appears that the applicable guiding principle here is that an actual, present and practical need for a declaratory judgment must be shown.3
This holding was echoed in 1982 in Law v. Florida Parole and Probation Commission, 411 So. 2d 1329, 1331 (Fla. 1st DCA 1982): “In the area of declaratory judgments and declaratory statements, two applicable principals must be considered: judicial restraint and a showing of ‘actual, present and practical need for a declaratory judgment.’”
In 1986, however, Professor Patricia Dore wrote an article, “Access to Florida Administrative Proceedings,” in which she discussed the relationship between declaratory statements and declaratory judgments.4 She explained:
The procedure was developed to meet the perceived inadequacies of declaratory judgment actions. It was developed to provide a less costly, less lengthy, less complicated, and less technical nonjudicial mechanism for members of the public to secure “binding advice where it is necessary or helpful for them to conduct their affairs in accordance with law.”5
She cautioned both courts and agencies not to treat declaratory statements as “masquerading declaratory judgment” actions.6
Apparently, Professor Dore’s guidance went unheeded for some time. In 1995, in Sutton v. Department of Environmental Protection, 654 So. 2d 1047, 1048 (Fla. 5th DCA 1995), the court stated that the purpose of a declaratory statement is
to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Individuals seeking declaratory relief must show that there is a bona fide, actual, present, and practical need for the declaration. . . [and that] the declaration deals with a. . . present controversy as to a state of facts.
In 1998, though, the requirement for a “present controversy as to a state of facts” for a declaratory statement was judicially dissolved. In Chiles v. Department of State, Division of Elections, 711 So. 2d 151, 154 (Fla. 1st DCA 1998), the court characterized the benefit of declaratory statements as avoiding “costly administrative litigation by selecting the proper course of action in advance.” In 2002, Novick v. Department of Health, Bd. of Medicine, 816 So. 2d 1237 (Fla. 5th DCA 2002), was decided in which the court explained: “Although there may be valid exceptions, a petition for a declaratory statement which seeks approval or disapproval of conduct which has already occurred is properly denied. The purpose of a declaratory statement is to allow a petitioner to select a proper course of action in advance.” (citations omitted) Contrast these holdings with the well accepted doctrine that
Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen and are only contingent, uncertain, [and] rest in the future.”7
Thus, there can be no question that no longer are declaratory statements simply the agency equivalent of a declaratory judgment. Declaratory statements are generally based upon conduct that has not occurred and are for avoiding litigation, while declaratory judgments adjudicate rights and obligations based upon present, ascertainable, nonhypothetical facts.8 While it is possible to construct factual scenarios under which either form of relief is proper, declaratory statements are now available in situations in which declaratory judgments most assuredly are not.
Declaratory Statement or Rule?
The distinction between agency declaratory statements and agency rules was, for approximately 25 years, a point of conflict and debate in administrative law. The source of the conflict was the judicial doctrine that a declaratory statement could not be issued if the statement would not be limited to petitioner’s particular set of circumstances but would instead result in a “rule.”9 An agency “rule” is defined as an “agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency.”10
The distinction between a declaratory statement and a rule was not always obvious. As explained in 1990 in Florida Optometric Ass’n v. Department of Professional Regulation, Bd. of Opticianry, 567 So. 2d 928, 937 (Fla. 1st DCA 1990):
We do observe, however, that declaratory statements and rules serve clearly distinct functions under the scheme of Chapter 120. Although the line between the two is not always clear, it should be remembered that declaratory statements are not to be used as a vehicle for the adoption of broad agency policies. Nor should they be used to provide interpretations of statutes, rules or orders which are applicable to an entire class of persons.11
The legislature added to the debate in 1996 by deleting from §120.565 the word “only” from the end of the phrase “as it applies to the petitioner’s particular set of circumstances.” While it was still clear that broad policy statements were not to be issued in declaratory statements, it was now less clear whether a statement that potentially applied to more persons than an individual petitioner was valid.
The issue came to a head in 1999. In Investment Corp. of Palm Beach v. Division of Pari-Mutuel Wagering, 714 So. 2d 589, 590 (Fla. 3d DCA 1998), decided in 1998 by the Third District Court of Appeal, the agency had issued a declaratory statement, but had added: “The Division is cognizant that a similar fact pattern may exist between other [horse racing] tracks in Florida and that the same dispute may reoccur between one of these Petitioners and a non-Petitioner. Therefore, the Division will initiate rulemaking to establish an agency statement of general applicability.” The court quashed the declaratory statement, finding: “Where a declaratory statement provides a response which is not limited to specific facts and specific petitioners, but in reality adopts a broad agency policy or provides statutory or rule interpretations that apply to an entire class of persons, it will be set aside on appeal.”12
Some two months earlier the First District Court of Appeal had decided Chiles, holding that although an agency should not issue a declaratory statement that amounted to a rule, “a declaratory statement is not transformed into a rule merely because it addresses a matter of interest to more than one person.”13 Chiles involved a candidate for statewide office requesting a declaratory statement regarding campaign financing. Two other statewide office holders intervened and argued that since the declaration could affect any statewide office seeker, the statement would be an invalid unpromulgated rule. The court disagreed, finding that the removal of the word “only” from F.S. §120.565 allowed a declaratory statement to apply to the petitioner and others similarly situated.
The Florida Supreme Court asserted conflict jurisdiction and reviewed Florida Dept. of Business and Professional Regulation, Div. of Pari-Mutuel Wagering v. Investment Corp. of Palm Beach, 747 So. 2d 374, 375 (Fla. 1999), in 1999. The court reversed the appellate court decision that had held that while a declaratory statement is appropriate to deal with a petitioner’s particular factual situation, such a statement is not appropriate when the declaration would result in an agency statement of general applicability interpreting law and policy. The court found:
[I]t elevates form over substance to assert that an agency cannot issue a declaratory statement dealing with a petitioner’s “particular set of circumstances,” while at the same time indicating that “a similar fact pattern may exist” in other circumstances and announcing its intention to “initiate rulemaking to establish an agency statement of general applicability.”14
Although the court stated that “it is highly debatable whether the declaratory statement statute was ever limited to a singular consideration of the petitioner’s unique situation only,” the court relied on the deletion of the word “only” from F.S. §120.565 in reaching this holding:
Notwithstanding, the Legislature clearly had some purpose in mind when it deleted the word “only” from §120.565(1). Therefore, if the purpose was to “clarify” the statute, a reasonable reading is that the deletion was meant to dispel any confusion that only the most narrowly drawn declaratory statement having an absolutely unique application was permissible.15
The Florida Supreme Court’s decision in Investment Corp. had the effect of rendering moot the debate as to whether a particular declaratory statement that affected more than the inquiring petitioner went “too far” and crossed over the line into the land of “unwritten rule.” An agency now has the option of issuing a declaratory statement, and initiating rule making if the agency decides that the policy behind the declaratory statement would best be implemented by rule. initiating rule making, the agency has the opportunity to act upon the policy contained in the declaratory statement so that no enforcement gap is created and other persons situated similarly to the original petitioner will be treated similarly.16
Who Knows Who Has Standing?
An appropriate adage is “bad facts make for bad law.” Rarely has that proven more accurate than in the multitude of appellate opinions addressing the efforts of 1000 Friends of Florida to block the installation of 12-inch sewer and 12-inch water lines with lift stations from U.S. 1 to Florida Department of Transportation (FDOT) rest stops on I-95. This paradigm of confusion featured 1000 Friends’ efforts to obtain a declaratory statement from the Florida Department of Community Affairs regarding those utility lines. The First District decision regarding the petition was intended to clarify the rights of parties to use §120.565 to address matters that also affected third parties. The peculiar facts and procedural posture, however, led to a direct conflict between the FDCA decision on remand and a parallel Fifth District decision on the same dispute, between the same parties, which the Fifth District had to resolve.
The U.S. Environmental Protection Agency hit FDOT with a series of penalties for failing on-site sewerage treatment systems at the two rest stops through the mid-1990s. FDOT contemplated multiple methods to resolve the matter, ultimately deciding on a six-mile utility corridor from U.S. 1. This involved an agreement whereby St. Johns County might reimburse the installation costs and assume maintenance of some of the corridor. The county did not conduct any public hearings pursuant to F.S. §163.3184, nor did the county process any comprehensive plan amendment or development order to facilitate the construction.
Several residents and a local public interest group challenged the lines serially. First, they challenged—unsuccessfully—a wetlands crossing permit by the Florida Department of Environmental Protection (FDEP). The challengers initially claimed that they lacked standing to object to the lines under F.S. §163.3215, because the lines lay in rights-of-way, and were therefore exempt from the definition of “development” under F.S. Ch. 163 and §380.04. In Friends of Matanzas v. DEP, 729 So. 2d 437 (Fla. 5th DCA 1999), the Fifth District Court of Appeal held that the challengers failed to show how the possibility of increased growth accommodated by the lines was too tenuous to establish standing to challenge the permit. The court also noted that it was up to the legislature, not the judiciary, to address the definition of “development” and exemption from that term.
The initial challengers, now joined by 1000 Friends of Florida, next filed two further challenges to the project. They filed an action for declaratory and injunctive relief in the 7th Circuit Court in and for St. John’s County. They requested the court to determine that the lines were “public facilities” that must be shown in the capital element of the county’s comprehensive land use plan. Accordingly, they demanded a public hearing addressing that amendment pursuant to F.S. §163.3184.
Simultaneously, they filed a petition for a declaratory statement from the FDCA. Their §120.565 petition contained virtually identical allegations, and sought nearly identical relief, as in their circuit court action. As should come as no surprise to anyone familiar with the laws of entropy, they achieved dramatically different results in the two matters.
The circuit court dismissed the action by summary final judgment. The lower court emphasized the fact that the lines, no matter how long, “replaced” the existing on-site water and sewer facilities at the two rest stops. The Fifth District affirmed in 1000 Friends of Florida v. St. Johns County, 765 So. 2d 216 (Fla. 5th DCA 2000). The appellate court emphasized the original petitioners’ admission in Matanzas that lines in the right-of-way are not subject to development order challenge under §163.3215. The court reasoned that the exemption of right-of-way improvements from “development” applied equally to any claim the lines should be reflected in the county’s comprehensive land use plan under F.S. §163.3184. The court did not reach the lower court’s “replacement” findings.
The FDCA and DOAH originally refused to address the issue, and the FDCA dismissed the petition. They determined that the petition for a declaratory statement should apply to the petitioner. They concluded that the petition was an inappropriate collateral attack on the actions of third parties, the FDOT and (perhaps) the county. The petitioners appealed this dismissal in the First District at the same time they appealed the circuit court dismissal to the Fifth District. This seemed like a recipe for inconsistent results. Of course, it was.
Six months before the Fifth District Court of Appeal affirmed the circuit court, and held that the petitioners had no standing under Ch. 163 to challenge the right-of-way improvements, the First District weighed in on solely procedural grounds. The First DCA held that the recent amendments to F.S. §120.565 meant that the petition no longer had to apply “only” to the petitioners.
The court noted that Investment Corp. sufficiently protected the rights of the FDOT and the county. The court cited with approval the Florida Supreme Court’s interpretation in Investment Corp. that Tomoka Land and Chiles show: “[T]he Legislature will not micromanage Florida’s administrative agencies and. . . the public’s interest is served in encouraging agency responsiveness in performance of their functions.”17
The First District further cited Investment Corp. (quoting Chiles in turn) regarding how the declaratory statement process protected third parties such as FDOT and the county:
“[T]he procedural safeguards inherent in a petition for declaratory statement are sufficient to protect the rights of any other concerned parties.” See [Investment Corp., 747 So. 2d at 384.] In other words, the notice provision “accounts for the possibility that a declaratory statement may, in a practical sense, affect the rights of other parties’ and allows any substantially affected party to intervene in the declaratory statement proceeding before the agency.” See Investment Corp., 747 So. 2d at 377, quoting Chiles, 711 So. 2d at 155.18
Ironically, in light of the simultaneously pending appeal on the merits in the Fifth District, the First District concludes the following on the county’s motion for clarification:
Our decision did not address the question of standing, because the appeal was taken from a dismissal of the petition. To date, neither the administrative law judge nor the Department of Community Affairs has considered and ruled on the merits of the petition, including the question of standing. Therefore, our reversal of the order dismissing the petition and our remand for consideration of the merits of the petition left open the question of appellants’ standing to bring the action.19
As stated above, several months later the Fifth District held that the appellants lacked standing to challenge the utility lines in the right-of-way under Ch. 163. One wonders why the First District did not, sua sponte, transfer the Ch. 120 appeal to the Fifth District, which had a substantial history with the case, or wait until after the Fifth District addressed the circuit court appeal.20 In any event, despite the First District’s caveat that it did not address standing, the parties had virtually diametrically opposite rulings, months apart, regarding the rights of third parties to challenge the utility lines.
The 1000 Friends litigations culminated with St. Johns County v. Department of Community Affairs, 836 So. 2d 1034 (Fla. 5th DCA 2003). The Fifth District expounded on the history of the multiple litigations, culminating in the determination by the First District that the petition could go forward, but the First District had not determined that the petitioners had standing under §120.565.
The DCA issued a declaratory statement on remand from the First District. The agency issued the statement “based only on the facts as stated by [1000] Friends,” and did not attempt to resolve disputed issues of fact raised by FDOT and the county.21 The FDCA operated under what the agency believed was legally imposed willful blindness; it sought to follow the perceived requirements of §120.565 to accept as true the facts asserted by the petitioner. This, despite the Fifth District’s 2000 decision, which was entered prior to the FDCA declaratory statement and which contained several core factual findings that undermined the petition. It further called into question the First District’s prior conclusion that §120.565 gave adequate remedies to FDOT and the county—at least as applied to this peculiar case. How could the ability to appear in a declaratory statement proceeding be any due process protection to directly affected parties who could not introduce judicially determined facts that expressly and conclusively countered the claims in the petition?
The Fifth District agreed. It held that its 2000 decision controlled. Accordingly, the declaratory statement was barred by the prior decision’s conclusion that the petitioners had no standing under Ch. 163 to object to utility lines lying within rights-of-way. No matter how well intentioned the petitioners or the Department of Community Affairs might have been in the §120.565 declaratory statement, “Neither are [sic] able, however, to get around the particularly broad statement made in [the 2000 Fifth District opinion] that Rinker [Materials Corp. v. Town of Lake Park, 494 So. 2d 1123 (Fla. 1986)] ‘held that sewer and roadway improvements within the rights-of-way are not subject to the requirements of part two of Chapter 163.’”22
Conclusion
While the Fifth District’s 2003 opinion closed the door on 1000 Friends, the First District’s opinion left the door wide open for other petitioners to use §120.565 to have agencies protect collaterally against adverse circuit court proceedings. This cannot be what the legislature intended when it broadened §120.565 standing by eliminating the word “only.” Instead of simplifying the process, third parties may seek to use §120.565 to tie parties in knots. This is particularly vexatious to substantially affected parties who are precluded from introducing adverse, judicially determined facts as in 1000 Friends.
Ironically, one of the coauthors has faced the opposite problem. A local governmental did not have a land use or zoning category for an assisted living facility (ALF), and proposed to create one for a party who proposed to construct one in the city. The potential applicant petitioned the Agency for Health Care Administration (AHCA) under §120.565, asking if the proposed zoning code definition compared with the AHCA’s interpretation of ALFs under F.S. §§400.401 and 400.402, as administered by AHCA. The petition sought to ensure that a permitted facility meeting the proposed local zoning code would not be inconsistent with the licensing statute. This seemed quite consistent with the First District’s determination that a local property owner or organization such as 1000 Friends could use §120.565 to ask DCA to declare if a proposed utility line must be shown in the local comprehensive land use plan pursuant to F.S. Ch. 163.
The AHCA refused even to process the §120.565 petition, primarily stating that the zoning code provision applied generally, not just to the petitioner, and that the AHCA could not, in effect, interpret a local code. Oddly enough, the First District determined in 1000 Friends that §120.565 allowed a petitioner to ask a state agency to review a local land use ordinance that applied to the entire county, not just the petitioner, for compliance with state law implemented by that agency.
Nonetheless, these disparate results demonstrate the ongoing uncertainty in interpreting §120.565. The legislature must further clarify the statute to prevent its use for forum shopping and inconsistent decision making. As currently drafted—and, more importantly, interpreted—an agency must accept all well pled facts in a §120.565 petition, and ignore contrary facts, even those that are judicially established. This does not make §120.565 a clarifying and useful tool to avoid litigation as contemplated by the legislature and reviewing courts; rather, it sets the stage for procedural chaos, and a host of wildly disparate—if not diametrically opposite—decisions regarding the exact same facts and parties. If the reader believes this is an overstatement, review of the 1000 Friends agency and judicial decisions in one sitting will convince anyone otherwise.
1 See Fla. Stat. §120.56(1) (1974).
2 Fla. Stat. ch. 86.
3 The Couch decision cited Okaloosa Island Leaseholders Ass’n, Inc. v. Okaloosa Island Authority, 308 So. 2d 120 (Fla. 1st D.C.A. 1975), as support. Okaloosa denied a declaratory judgment, holding, “The issue posed in the complaint involved only a mere possibility of a dispute in the future.” Id. at 122.
4 13 Fla. St. U. L. Rev. 965 (1986).
5 Id. at 1053.
6 Id.
7 Santa Rosa County v. Administration Com’n, Div. Of Administrative Hearings, 661 So. 2d 1190, 1194 (Fla. 1995).
8 It is questionable today whether an agency would offer a declaration relating to whether a term in an assigned contract had been superseded by a statute enacted prior to the assignment of that contract, as was done in 1982 in Sans Souci v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation, 421 So. 2d 623 (Fla. 1st D.C.A. 1982). See Novick, 816 So. 2d 1237.
9 Florida Optometric Ass’n v. Department of Professional Regulation, Bd. of Opticianry, 567 So. 2d 928, 937 (Fla. 1st D.C.A. 1990) (“When an agency is called upon to issue a declaratory statement in response to a question which is not limited to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of §120.54 governing rulemaking.”).
10 See Fla. Stat. §120.52.
11 But see Federation of Mobile Home Owners of Florida, Inc. v. Department of Business Regulation, Div. of Florida Land Sales, Condominiums and Mobile Homes, 479 So. 2d 252 (Fla. 2d D.C.A. 1985), in which the court held, six years earlier, that since at least three members of the petitioner federation would be affected by the requested declaratory statement, the federation had standing to request a declaratory statement.
12 Investment Corp., 714 So. 2d at 591.
13 Chiles, 711 So. 2d at 154 (Fla. 1st D.C.A. 1998).
14 Investment Corp. of Palm Beach, 747 So. 2d at 385.
15 Id. at 383 (citations omitted).
16 See Fla. Stat. §120.56(4)(e).
17 1000 Friends of Florida v. Florida Department of Community Affairs, 760 So. 2d at 157 (emphasis added).
18 Id.
19 Id.
20 In Parlato v. Secret Oaks Owners Association, 793 So. 2d 1158 (Fla. 1st D.C.A. 2001), the First District did not transfer the case to the Fifth, but it surely made every effort to ensure its decision followed the several related cases that the Fifth District had addressed on the dock dispute between the parties. In an effort for complete disclosure, the authors of this article represented the Parlatos in multiple iterations of that litigation. Interestingly, while the First District noted that the Parlatos may have administrative rights under Rule 18-21.004(3), Fla. Admin. Code, to challenge the dock, “[i]t follows that any rights the Parlatos may have under [that] rule are subordinate to the rights created by the easement [which had been established by multiple opinions of the Fifth District, cited within the First District’s opinion].” Equally clearly, the First District could have abated the declaratory statement appeal in 1000 Friends until the Fifth District’s decision was entered. The Fifth District’s decision could have guided the First District review, much as happened in Parlato. Instead, the subsequent Department of Community Affairs’ declaratory statement showed what can happen; had it not been successfully appealed, the DCA’s declaratory statement would have required amendments to the comprehensive plan for which the Fifth District had already said the petitioners lacked standing to seek. Coincidentally, Secret Oaks Owners Association had unsuccessfully sought to transfer the appeal in that case to the Fifth; coincidentally, 1000 Friends had unsuccessfully tried to transfer the 2002 appeal addressed below, supra note 22 and accompanying text, to the First District.
21 St. John’s County, 836 So. 2d at 1036.
22 Id. at 1037.
Sidney F. Ansbacher practices environmental and land use law in St. Augustine and is a partner in the firm of Upchurch, Bailey and Upchurch, P.A. He received his B.A. from the University of Florida in 1981, J.D. from Hamline University in 1985, and LL.M. in agricultural law from the University of Arkansas in 1989. Mr. Ansbacher is past chair of The Florida Bar Environmental and Land Use Law Section.
Robert C. Downie II is Special Counsel for Land Use and Transportation Planning for the Florida Department of Transportation. He received his J.D. in 1989 from the Florida State University College of Law. Mr. Downie is chair-elect of the Administrative Law Section executive council.
This column is submitted on behalf of the Administrative Law Section, Donna E. Blanton, chair, and Richard M. Ellis, editor.
