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During the 2005 Regular Session, the Legislature
enacted several changes to the Administrative Procedure Act (APA).
Here's a brief summary of some of the changes.
Expands Internet Noticing to All Agencies.
Initially, the principal purpose of
the bill was to provide for "internet noticing" for all agencies.
Most readers know that, several years ago, the Legislature created a
pilot project by which DEP published its official notices on its web
site, rather in the Florida Administrative Weekly. Section 4
of CS/CS/CS/SB 1010 expands this pilot project to all state
agencies. The bill also provides for e-mail notification and for
electronic commenting on proposed rules.
Provides for Equitable Tolling.
Several recent appellate decisions, in dicta, have
suggested that the doctrine of equitable tolling may be applied to
extend the administrative time limit in cases where the petitioner
"has been misled or lulled into inaction, has in some extraordinary
way been prevent from asserting his rights, or has timely asserted
his rights mistakenly in the wrong forum."[1] However, two commentators have questioned the application
of equitable principles in light of the Legislature's clear
expression that untimely petitions for hearing may not be
considered.[2]
Section 7 of CS/CS/CS/SB 1010 revises Section 120.569(2)(c) to make
clear that the time for filing a petition will be extended in these
circumstances.
Limits Required Contents of Petition in Enforcement and Disciplinary
Cases. Judge Cope of the Third District recommended that
the Legislature amend the provisions in the APA governing the
sufficiency of a petition when the administrative action is
initiated by the filing of an administrative complaint by the
agency.[3]
In particular, Judge Cope has suggested that it should be sufficient
for the respondent to submit a document that sets forth those
paragraphs of the administrative complaint that are admitted,
denied, or as to which the respondent is without knowledge, along
the lines allowed by Florida Rule of Civil Procedure 1.110(c). A
similar approach arguably is reflected in the Uniform Rules of
Procedure (which expressly apply in administrative proceedings).
However, some have wondered whether these rules are authorized by
the APA. Section 3 of CS/CS/CS/SB 1010 revises Section 120.54(5)4
to make it clear that these detailed pleading requirements do not
apply to persons requesting hearings in response to agency
enforcement or disciplinary cases brought by an agency.
Provides Clear "Point of Entry" for Declaratory Statements.
Section 3 of CS/CS/CS/SB 1010 also revises Section 120.54(5)(b)5 to
require the Uniform Rules regarding petitions for declaratory
statement to require that these rules describe the contents of the
notices that must be published in the Florida Administrative
Weekly, including any applicable time limit for the filing of
petitions for leave to intervene or petitions for administrative
hearing by persons whose substantial interests may be affected.
Clarifies Agency Obligation to Rule on Exceptions.
In 2003, the Legislature eliminated
the need to rule on exceptions that do not clearly identify the
disputed portions of the recommended order, that do not identify the
legal basis for the exception, or that do not include specific
citations to the record. This legislative change was designed to
address those court decisions that had applied a model rule of
procedure to require the agency to explicitly rule on each
exception, including exceptions that were subordinate, cumulative,
immaterial, or unnecessary.[4]
However, the APA contains no express requirement that the agency
explicitly rule on each exception, and the cited model rule has now
been repealed. Section 8 of CS/CS/CS/SB 1010 revises Section
120.57(1)(k) to expressly include this requirement.
Really Requires Agencies to Provide Final Orders to DOAH. In those cases where DOAH
conducts the final hearing, the APA requires the agency to provide a
copy of its final order to DOAH within 15 days after the order is
filed with the agency clerk. Apparently, not all agencies have
complied with this longstanding requirement. Section 8 of
CS/CS/CS/SB 1010 also revises Section 120.57(1)(m) to make the final
order in such cases effective only upon filing with DOAH.
Requires Agencies and DOAH to Identify Types of Disputes Amenable to
Summary Hearings. One of
the frequently-heard complaints about the APA is that it has become
too complex or complicated for resolving the "garden variety"
dispute. Another complaint is that the administrative hearing
process has become too time-consuming and expensive. In 1996, the
Legislature amended the APA and established the summary hearing
process, which is now codified in s. 120.574. The summary hearing
process is designed to facilitate a more rapid and less complex
resolution of disputes and, in particular, to streamline the hearing
process when discovery is not required. It appears the process has
been little used, no doubt because it requires the agency to agree
that the ALJ (rather than the agency) will issue the final order.
It has been suggested that the Legislature should require
that certain types of cases be conducted pursuant to the summary
hearing process. In an effort to identify those cases, Sections 9
and 10 of CS/CS/CS/SB 1010 amend the APA to require each agency and
DOAH to identify the types of disputes in which the agency is
involved that would be amenable to the summary hearing process.
Clarifies What "Notice" Must Be Published Following the Final Public
Hearing on the Proposed Rule. Section 120.54(3)(d)1 requires that
an agency file and publish certain notices after the final public
hearing on a proposed rule, depending on whether the rule has been
changed from the rule as previously filed with the committee. If
the rule has not been changed or contains only technical changes,
the adopting agency must file a notice to that effect with the
committee at least seven days prior to filing the rule for
adoption. On the other hand, if a change other than a technical
change is made in a proposed rule, the adopting agency must provide
a copy of the notice "of change" to certain persons and must file
the notice with the committee, along with the reasons for such
change, at least 21 days prior to filing the rule for adoption. The
adopting agency also is required to publish "the notice" in the
Florida Administrative Weekly at least 21 days prior to filing
the rule for adoption. Unfortunately, it is not altogether clear
whether only the notice of change must be published in the Weekly, or whether the agency
also must publish notice
that there has been no change. Section 3 of CS/CS/CS/SB 1010
revises this paragraph to clarify that only the notice "of change"
must be published.
Clarifies Who is a "Small Business Party" Under FEAJA.
Although not located within the APA
itself, the Florida Equal Access to Justice Act authorizes an award
of attorney's fees and costs to a prevailing "small business party"
in any adjudicatory proceeding or administrative proceeding pursuant
to Chapter 120 initiated by a state agency, unless the actions of
the agency were substantially justified or special circumstances
exist that would make the award unjust.[5]
The appellate courts had split on whether an individual is a "small
business party" eligible for attorneys fees under s. 57.111,[6]
and the Florida Supreme Court recently held that it is not.[7]
Section 2 of CS/CS/CS/SB 1010 revises Section 57.111(3)(d) to make
clear that a small business party includes an "individual" and "only
other persons" whose net worth does not exceed $2 million.
As of this writing, CS/CS/CS/SB 1010 has not yet been presented to
the Governor, and he has not yet had an opportunity to determine
whether to veto the bill. In addition, several more controversial
changes were not approved; look for these to be considered in 2006.[8]
Larry
Sellers 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.
E.g., Machules v. Department of Administration, 523 So.
2d 1132 (Fla. 1988); Appel v. Florida Department of
State, Division of Licensing, 734 So. 2d 1180 (Fla. 2d
DCA. 1999); Cann, 813 So. 2d at 239; Patz, 864
So. 2d at 80-81 n.3
Ross
Stafford Burnaman, Equitable Tolling in Florida
Administrative Proceedings, 74 Fla. B.J. 60 (Feb. 2000);
John S. Yudin, Equitable Tolling in Administrative
Proceedings: Where is the Authority?, XXIV
Administrative Law Section Newsletter 3 (September 2002).
Brookwood Extended Care Center of
Homestead, LLP v. Agency for Health Care Administration, 870 So.2d 834 (Fla. 3d DCA 2003);
see also Samuel J.
Morley, Brookwood Extended Care Center of Homestead, LLP
v. Agency for Health Care Administration, Responding to
Administrative Complaints (or How Not To), XXV
Administrative Law Section Newsletter 1 (December 2003).
Daniels v. Department of Health, 898 So.2d 61 (Fla.
2005). This case involves a petition to review a per
curiam affirmance of a DOAH order denying Daniels'
amended petition for attorney's fees based on the ALJ's
finding that she is an individual, not a "small business
party" as defined by section 57.111(3)(d), F.S. 868 So. 2d
551 (Fla. 3d DCA 2004).
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