Why Florida Needs the Administrative Procedure Act
It is likely that the life of the average Florida citizen today is more directly affected by decisions of Florida administrative agencies than by those of the courts. Because of the combination of Florida’s rapid growth with its inevitable impact upon virtually every governmental institution, together with the state’s fragile natural environment, the scope of government regulation in Florida has increased exponentially in the last 50 years. The types of decisions made by state agencies include areas as disparate as where and how local governments may grow; the size and location of healthcare facilities; the size and location of electric utilities, including the establishment of rates charged to customers; the drawing of school district lines by local school boards; and the location of transportation facilities and the selection of the companies that will build them, to name a few. In short, in modern day Florida, state government is very much with us. Close upon the 25th anniversary of the enactment of the modern Florida Administrative Procedure Act,1 it is instructive to take a brief look at the development of administrative law as a distinct legal concept, the development and processes associated with the practice of administrative law in Florida, and whether the current system is of continuing value.
American administrative law is a phenomenon which has developed over the last 150 years, growing primarily out of the federal “trust busting” activities in the late 19th century and the heightened degree of government involvement resulting from attempts to recover from the Great Depression. Several factors gave rise to administrative agencies at both the federal and state levels. Important among these factors were the increasing complexity of modern social, economic, and industrial systems and the importance of specialized expertise in the regulatory process.2
The proliferation of administrative agencies can be traced to the need for governmental entities that not only decide disputes, but also have the power to issue regulations having the force of law, to supervise the application of the law, and to investigate and prosecute matters within the scope of legislatively created regulatory programs.3 The legislative branch of government is ill-suited for such a task because day-to-day regulation often involves amassing great quantities of detailed information and applying the product of evolving science and technology to new problems on an ongoing basis. In contrast, legislative bodies are better suited to establishing major public policies and monitoring how those policies are being administered by the executive branch.4
Likewise, the courts were thought to be ill-suited to perform many of the functions of administrative agencies. Aside from the obvious problem of the constitutional separation of powers doctrine, courts traditionally have been viewed as too awkward, slow, and expensive to resolve administrative disputes adequately.5
Against this backdrop, the Florida Law Revision Council undertook in 1974 to produce and propose for enactment by the Florida Legislature a wholly revised Administrative Procedure Act.6 The purpose of this revision was “to remedy massive definitional, procedural and substantive deficiencies in existing law.. . . ”7 The amendments to F.S. Ch. 120 that emerged from this effort address these problems “(i) by prescribing due process minima for the operation of Florida administrative agencies, (ii) by defining with particularity the agencies covered or excluded, (iii) by clarifying inconsistencies and rectifying incongruities in the existing law, (iv) by expanding the opportunities for flexibility and informality in Florida administrative processes, (v) by broadening public access to the precedence and activities of agencies, and (vi) by clarifying the scope of judicial review.”8 it was also noted by the council’s reporter that:
The notions of basic fairness which should surround all governmental activity, such as the opportunity for adequate and full notice of agency activities, the right to present viewpoints and to challenge the view of others, the right to develop a record which is capable of court review, the right to locate precedent and have it applied, and the right to know the factual bases and policy reasons for agency action, are neither uniformly nor universally applied in Florida. The proposed act attempts to rid existing law of the anachronisms which allow those conditions to exist.9
Another goal of the 1974 amendments to Ch. 120 was to increase access to and the availability of public information about the actions of state agencies. Accordingly, the amendments to Ch. 120 were intended to “cut down on the private knowledge of the policies which shape agency decisions which is now possessed only by small groups of specialists and the agency staffs.”10
The amendments to the Administrative Procedure Act that were passed in 1974, and amendments that occurred almost annually thereafter until the mid-1990s, created “an impressive arsenal of varied and abundant remedies for administrative error.. . . ”11 Specifically, the new Administrative Procedure Act impacted the scope and manner of the exercise of agency discretion in three important respects: 1) the APA established a method for resolving issues of disputed fact; 2) it required that an agency adopt in rule form its policy statements of general applicability, and further required agency proof of policies not expressed in rules and permitted countervailing evidence and argument; and 3) it required an agency to explain in a final order the exercise of its discretion and subjected that explanation to judicial review.12 Florida courts were quick to acknowledge that “the administrative process, as embodied in Florida’s 1974 Act, recognizes that a hearing independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion.”13
the mid-1990s, legislative concern with agency activities led to a sweeping review, analysis, and amendment of Ch. 120.14 The legislature, after receiving a report from the Governor’s Administrative Procedure Act Review Commission, enacted sweeping amendments to Ch. 120.15 The goals of these amendments were to simplify the Administrative Procedure Act, increase flexibility in the application of administrative rules and procedures, and to increase agency accountability to the legislature and the general public.16 Among other things, these amendments created a variance and waiver procedure to allow agencies more flexibility when the strict application of rules resulted in unfairness,17 the award of attorneys’ fees to administrative litigants under certain circumstances,18 increased opportunities for informal resolution of administrative disputes,19 and additional rulemaking requirements for agencies.
As presently constituted, the Florida Administrative Procedure Act contains an even more “impressive arsenal of varied and abundant remedies for administrative error” than in 1977 when that evaluation of the act was made by the court in Department of General Services v. Willis, 344 So. 2d 580 (Fla. 1st DCA 1977). There are specific requirements that agencies must follow in developing and adopting rules which are generally applicable to the public.20 Agencies are required to maintain and index their final orders so that the public can be informed with regard to an agency’s interpretation of its legislative mandates.21 Agencies must adopt as rules their statements of general applicability,22 and the extent of their rulemaking authority has been increasingly circumscribed by the legislature.23 Agencies are required in certain circumstances to estimate the anticipated cost of new regulations on the public.24 Agencies are now allowed to grant variances or waivers to their rules to avoid unfair results.25 Agency actions in the form of rule adoption or the determination of individual rights are subject to hearing requirements before independent administrative law judges, where the parties are intended to participate on an equal footing.26 Informal resolution of administrative disputes is possible through either mediation27 or the summary hearing process.28 Finally, agency action is reviewable by the appellate court system in Florida.29
In Ch. 120, the Florida Legislature has created a comprehensive administrative decisionmaking process which provides a road map for the exercise of authority delegated to agencies by the legislature, and, at the same time, provides full opportunities for public participation. Utilization of these processes results in informed decisionmaking by government officials, and further lends legitimacy to the decisionmaking process through encouraging public participation. It is precisely this type of public participation which raises the level of confidence of citizens in their government. As observed by Professor Kenneth Davis:
The administrative process is a governmental tool. It is no more conservative or liberal than the elevator in the Senate Office Building. . . . Even though it is only a tool, and even though it has a wide range of flexibility and adaptability, the administrative process is always a tool for positive government, never a tool for laissez faire.30
The processes embodied in F.S. Ch. 120, as frequently amended by the legislature, have stood the test of time. The decisionmaking template contained in the Florida Administrative Procedure Act contains a comprehensive process which subjects state agencies to a uniform procedure, thus hopefully assisting in predictability and guarding against arbitrariness. The citizens of Florida have a huge investment in the development of this process as it has evolved over the last 25 years. The remarkable combination of legislative creativity, the adaptability of the executive branch in utilizing the processes contained in Ch. 120, and judicial interpretations applied to the final products of that process have placed Florida in the forefront of progressive administrative decisionmaking. This is not to imply that the current system is perfect. The act has been amended many times during the last 25 years. However, the basic concepts requiring agencies to use uniformly recognizable procedures in enacting rules or issuing orders; allowing the public an opportunity to challenge those decisions in a neutral forum; and subjecting agency decisions to judicial review are of significant value to the citizens of Florida, and should not be changed lightly.
1 Fla. Stat. §120.50 et seq.
2 Chapman v. Federal Power Comm., 345 U.S. 153 (1953); Barsky v. Board of Regents, 347 U.S. 442 (1954).
3 K. Davis Administrative Law Text 13 (1959).
4 Id. at 15.
5 Id. at 16.
6 Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at p. 1.
7 Id. at p. 3.
8 Id.
9 Id. at p. 5.
10 Id. at p. 6.
11 Dept. of General Services v. Willis, 344 So. 2d 580, 590 (Fla. 1st D.C.A. 1977).
12 McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 577 (Fla. 1st D.C.A. 1977).
13 Willis, 344 So. 2d at 591.
14 See Final Report of the Governor’s Administrative Procedure Act Review Commission (1996).
15 PCS/HB 1179 (1996).
16 Final Report of the Governor’s Administrative Procedure Act Review Commission, at p. 4.
17 Fla. Stat. §120.542.
18 Fla. Stat. §120.595.
19 Fla. Stat. §§120.573, 120.574.
20 Fla. Stat. §§120.54, 120.541.
21 Fla. Stat. §120.53.
22 Fla. Stat. §120.54.
23 Fla. Stat. §§120.53(8), 120.536(1).
24 Fla. Stat. §120.541.
25 Fla. Stat. §120.542.
26 Fla. Stat. §§120.569, 120.57(1).
27 Fla. Stat. §120.573.
28 Fla. Stat. §120.574.
29 Fla. Stat. §120.68.
30 K. Davis, supra note 3, at p. 6.
William E. Williams is managing shareholder at Huey, Guilday & Tucker, Tallahassee. He received his B.A. in 1967 from Florida State University and J.D. in 1970 from University of Florida College of Law. Mr. Williams is a member and past chair of the Administrative Law Section Executive Council.
S. Curtis Kiser of Holland & Knight LLP received his B.A. in 1966 from the University of Ohio and his law degree from Florida State University College of Law in 1970.
