July 2006

Last year, Governor Jeb Bush vetoed[1] a bill that would have amended the Administrative Procedure Act (APA).[2]  This year, the Legislature approved similar legislation, but incorporated several changes designed to address the Governor's concerns.  Here's a brief summary of some of the key provisions in the 2006 bill, CS/CS/SB 262.

Expands E-Rulemaking to All Agencies.  

Initially, the principal purpose of the bill was to provide for "internet noticing" for all agencies.  Several years ago, the Legislature created a pilot project by which DEP publishes its official notices on its website rather than in the Florida Administrative Weekly.  Section 4 of CS/CS/SB 262 expands this project to all state agencies by providing for the electronic publication of the Weekly on an internet website managed by the Department of State.  (The Department also is required to continue to publish a printed version of the Weekly and to make copies available on an annual subscription basis.)  The bill requires this website to allow users to search notices, subscribe to an automated e-mail notification of selected notices, and to provide electronic comments on proposed rules.  The Department recently established a new Florida Government Electronic Rulemaking System, which may be found at www.flrules.com/default.asp.

Provides for Equitable Tolling. 

Several judicial 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." [3]  However, commentators have questioned the continuing application of equitable tolling in light of the Legislature's clear expression that untimely petitions for hearing may not be considered.[4]  Section 6 of CS/CS/SB 262 revises Section 120.569(2)(c) to provide that "this paragraph does not eliminate the availability of equitable tolling as a defense to the untimely filing of a petition."  Language in the 2005 bill that was intended to codify the judicial definitions of equitable tolling was not included[5] as this language was one of the stated reasons for the Governor's veto.[6]

Revises Required Contents of Petition in Enforcement and Disciplinary Cases. 

Chief Judge Gerald Cope of the Third District recommended that the Legislature amend the provisions of the APA governing the sufficiency of a petition when the administrative action is initiated by the filing of an administrative complaint by an agency.[7]  In particular, he 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).  The 2005 bill would have revised Section 120.54(5)4. to make it clear that the Administration Commission may establish less-detailed pleading requirements for persons requesting hearings in response to agency enforcement actions or disciplinary cases brought by an agency.  The Governor interpreted this provision as exempting actions relating to agency enforcement and disciplinary actions altogether from any pleading requirements.  The Governor objected to this provision because he thought it was important for petitions in such cases to contain certain basic information including whether there are disputed issues of material fact.  Section 3 of CS/CS/SB 262 addresses this objection by creating a new subparagraph 5 of Section 120.54(5)(b) that requires that the Uniform Rules establish specific pleading requirements for a request for administrative hearing filed by a respondent in agency enforcement and disciplinary actions.[8]  Notably, the agency may provide for an election-of-rights form for the respondent's use in requesting a hearing so long as any form provided by the agency calls for the information set out in the statute and does not impose any additional requirements on a respondent in order to request a hearing, unless such requirements are specifically authorized by law.

Provides Clear "Point of Entry" for Declaratory Statements.

Section 3 of CS/CS/SB 262 also revises Section 120.54(5)(b)6. to require that the Uniform Rules regarding petitions for declaratory statement 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 jusicial decisions that had applied a model rule of procedure to require the agency to rule explicitly on each exception, including those that were subordinate, cumulative, immaterial, or unnecessary.[9]  However, the APA contains no express requirement that an agency rule explicitly on each exception and the cited model rule has been repealed.  Section 6 of CS/CS/SB 262 revises Section 120.57(1)(k) to expressly include this requirement to rule on each exception (except those expressly excluded).

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 to establish the summary hearing process which is 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 where 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 8 and 9 of CS/CS/SB 262 amend the APA to require each agency and DOAH to identify, each year, the types of disputes in which the agency is involved that would be amenable to the summary hearing process.

Requires DOAH to Provide Report on Filing of Final Orders. 

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.  DOAH then posts the final order on its website as part of the docket for that case.  Apparently, not all agencies have regularly complied with this filing requirement.  To encourage timely filing, the 2005 bill would have revised Section 120.57(1)(m) to make the final order in such cases effective only upon filing with DOAH.  This provision proved controversial, so it was not included in the 2006 bill.  Instead, Section 8 of CS/CS/SB 262 revises Section 120.65(10)(d) to require DOAH to include in its annual report to the Administration Commission a report regarding each agency's compliance with the filing requirements.

Clarifies What "Notice" Must Be Published Following the Final Public Hearing on the Proposed Rule. 

Section 120.54(3)(d)1 requires an agency to file and publish certain notices after the final public hearing on a proposed rule, depending on whether the rule has been changed from that previously filed with the Joint Administrative Procedures 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 also 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/SB 262 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.[10]  The appellate courts were split on the question of whether an individual is a "small business party" eligible for attorneys fees under Section 57.111, and the Florida Supreme Court held that it is not.[11]  The 2005 bill sought to correct this, but the Governor's veto message expressed concern that this new provision "could generate unwarranted litigation that consumes limited legal, programmatic and fiscal resources, regardless of whether an agency's actions were substantially justified."  The 2006 bill addresses this objection by revising the definition of "small business party" to fix the problem created by the Florida Supreme Court's decision.  In particular, Section 2 of CS/CS/SB 262 revises Section 57.111(3)(d) to make clear that a small business party includes an "individual whose net worth does not exceed $2 million at the time the action is initiated by a state agency when the action is brought against that individual's license to engage in the practice or operation of a business, profession, or trade."  Like the 2005 bill, the 2006 legislation makes no change in the standard for determining whether an agency's actions were substantially justified.

The bill was approved by Governor Bush on June 7 and it becomes effective on July 1, 2006.

Larry Sellers is a partner with Holland & Knight LLP, practicing in the firm’s Tallahassee office. He received his J.D., with honors, from the University of Florida College of Law.

[2]  CS/CS/CS/SB 1010 (2005).  For a summary of the 2005 bill, see Lawrence E. Sellers, Jr., More APA: The 2005 Amendments, ELULS Reporter (June 2005).

[4]  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).

[5]  The 2005 bill provided that "The time for filing shall be extended if the petitioner has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his or her rights, or has asserted his or her rights mistakenly in the wrong forum."  CS/CS/CS/SB 1010, ?7, amending s. 120.569(2)(c), F.S.

[6]   The Governor said this provision was "open-ended" and "would likely increase litigation and associated costs, and raises the possibility of retroactive remedies imposed years after an action is taken."

[7]  Brookwood Extended Care Center of Homestead, LLP v. Agency for Health Care Administration, 870 So.2d 834 (Fla. 3d DCA 2003).

[8]  This provision is modeled after the draft proposed changes to the Uniform Rules.

[9]  E.g., Iturralde v. Department of Professional Regulation, 44 So.2d 1315 (Fla. 1^st DCA 1996).  In so holding, the court cited Model Rule 28-5.405(3), which was adopted by the Department of Professional Regulation in Rule 21M-18.04.  The cited rule expressly required the final order to include an explicit ruling on each exception or proposed finding of fact, as well as a brief statement of grounds for denying the exception or proposed finding of fact. 

[10]  Section 57.111, F.S. (2004).

[11] Daniels v. Department of Health, 898 So.2d 61 (Fla. 2005).