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Boca Raton & West Palm Beach Administrative & Local Government Appeals Attorney

Florida law empowers the state government to establish administrative agencies tasked with regulating specific subjects, such as adoption, highway safety, health care, and education. There are also some local government entities related to those state agencies, such as county school boards. Their jurisdiction typically includes the power to make rules and to regulate implementation of these rules to interpret, apply, and implement state law. The Administrative Procedure Act (APA) in Chapter 120 of the Florida Statutes governs the agencies and ensures that they act within legal parameters. This is important because agencies are staffed by appointed officials and not elected officials (although some governing boards are elected and certain officials such as superintendents of schools may be elected in some counties). Thus, the APA holds agencies accountable both to the state government and to the general public.

Review of Agency Quasi-Judicial Actions

Agency heads or state administrative law judges of the state Division of Administrative Hearings (DOAH) can made quasi-judicial decisions that are appealable to the district court of appeal under Florida Statutes section 120.68. (However, circuit courts have jurisdiction of appeals from final administrative orders of local government code enforcement boards. § 26.012(1), Fla. Stat.) Some examples include orders revoking a license, terminating an employee, or expelling a student. The agency clerk prepares the record for the appellate court to review.

On review, the appellate court decision may be mandatory, prohibitory, or declaratory in form. The court may order the agency to take some action required by law; order the agency to exercise discretion when required by law; set aside the agency’s action; remand the case for further agency proceedings; or decide the rights, privileges, obligations, requirements, or procedures at issue between the parties; and order related relief as the court may find necessary to redress the effects of official action wrongfully taken or withheld.

The appellate court will remand the case to the agency for further proceedings consistent with the court’s decision or set aside agency action when it finds that: there has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts; the agency’s action depends on any finding of fact that is not supported by competent, substantial evidence;

the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure; the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or the agency’s exercise of discretion was improper. Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action under a specified provision of the Administrative Procedure Act, it will affirm the agency’s action.

Some quasi-judicial decisions of county, municipal, or state agencies are not subject to appeal under the Administrative Procedure Act but they may be reviewed via a petition for writ of certiorari to the circuit (trial) court. (Circuit courts also have original jurisdiction of appeals from final administrative orders of local government code enforcement boards. § 26.012(1), Fla. Stat.) (Notably, there is some authority that certain local-government actions may be reviewed even without being memorialized in a written order). This is called “first-tier certiorari review,” where the circuit court must determine whether procedural due process was afforded, whether the essential requirements of the law were observed, and whether the administrative findings and judgment were supported by competent substantial evidence. The circuit court can quash the decision of the local government. A party can then seek review of the circuit court’s order by the district court of appeal, which may consider whether the circuit court afforded procedural due process and applied the correct law. If the appellate court finds those elements missing, it can quash the circuit court’s order.

An Agency’s Quasi-legislative Rulemaking Authority

State agencies and local governments can exercise quasi-legislative authority. This is the general description of an administrative agency’s rulemaking authority:

  • The agency may adopt rules in order to implement a specific statute.
  • The agency’s rulemaking authority extends only to the specific powers and duties granted by the statute, although some agencies such as school boards can also implement their general powers through rules.
  • The agency does not have power to adopt rules that are merely related to the statute or rules that set forth their own legislative intent.

The following is a summary of the major steps in the Florida APA rulemaking procedure that agencies must follow but certain entities such as school boards are allowed to advertise in the legal notices section of a newspaper and some of the following steps are different or inapplicable for such entities:

  • The agency may hold public workshops or hearings to discuss the proposed rule development. It must hold public workshops if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary.
  • Notice of the proposed rule development generally must be published in Florida Administrative Register (FAR).
  • The agency drafts the rule, which must be approved by the agency head.
  • At least 21 days prior to adoption, the agency must submit a copy of the rule and any supporting documents to the Joint Administrative Procedures Committee (JAPC), which is a joint standing committee of the Florida legislature.
  • JAPC will review the rule.
  • After notice has been published in FAR, the public has 21 days to request a hearing.
  • A substantially affected person may challenge the validity of the proposed rule (or of an existing rule) by requesting a hearing before the Division of Administrative Hearings (or before the agency head in the case of certain local entities such as school districts).
  • If the proposed rule is approved by JAPC and is not timely challenged in a hearing, then the agency files the rule for adoption with the Department of State within the time allowed by section 120.54(3)(e)2.  Prior to this filing, JAPC must certify that the agency has responded to all of the committee’s comments and questions.
  • The rule typically becomes effective 20 days after filing.

Challenging an Agency’s Rulemaking Action in an Administrative Appeal

A person who is substantially affected by the agency’s proposed rule – or by an existing rule – may appeal the agency’s action to Florida’s Division of Administrative Hearings (DOAH), which hears appeals concerning agency actions. (Note that an administrative rulemaking challenge is not the same as judicial review of an administrative quasi-judicial decision.) If the party is challenging an existing rule, then he or she has the burden of proving that the rule was an invalid exercise of the agency’s delegated legislative authority. Otherwise, the agency must prove that it has not acted beyond its power.

Administrative law judges hear these rulemaking challenges. If the challenge is to a proposed rule, it cannot be implemented until the judge has issued a final order. If the judge finds that the rule, or part of the rule, is invalid, then the proposal must be withdrawn. The agency must then publish notice of the invalidity in FAR. The law also requires DOAH to notify JAPC of challenges to any proposed or existing rules and to provide copies of the judge’s final order.

An administrative appeal is a unique legal action. The experienced appellate attorneys at The Law Offices of Robin Bresky have a thorough understanding of administrative law generally and of the APA specifically.  One of our attorneys worked with government agency legal departments for 12 years, was extensively involved in rulemaking, and handled dozens of appeals for the agencies. We welcome inquiries concerning administrative or local government appeals, so contact us today at 561-994-6273.

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