Whatever your area of practice, Florida administrative law can have a real life impact on your clients and their needs. In a myriad of arenas, from banking and insurance, to driver licenses and day care, administrative agencies promulgate rules, oversee compliance and enforce penalties on individuals and businesses.
Most attorneys have little or no experience with administrative matters and consider such matters outside their “comfort zone.” Yet, identifying whether administrative action is necessary or preferable to traditional circuit court or appellate proceedings is a necessary component of effective advocacy.
In determining options, it is critical to realize what constitutes agency action affecting a client’s “substantial interests” and what is the “point of entry” entitling your client to a hearing 1. In some cases this is obvious; in others not so much. For example, rule making proceedings may “substantially affect” individuals, businesses and trade groups, yet few practitioners consider getting involved in such matters.
Once it is determined that an administrative proceeding is the necessary course of action, the important differences between administrative proceedings and circuit court actions must be understood 2. Administrative proceedings offer very short windows of time for entry into the process 3. Moreover, failure to pursue administrative remedies may preclude later access to the courts due to “exhaustion” concerns 4.
Competitive procurements also require quick reaction. Prospective bidders should be made aware of the ability to invoke administrative remedies at all stages of the bid process. The time to “protest” a competitive procurement can come well before the bids are evaluated, as a vendor may need to appeal the specifications of the procurement instrument in order to ensure a fair process. Failure to file a “bid specification” protest may very well preclude the ability to later protest the intent to award the contract after the bids are evaluated 5.
In circuit court, pleadings can be lengthy and numerous. By contrast, the initial pleading under the Administrative Procedures Act (APA), which details how the petitioner’s substantial interests will be affected, explains issues of material fact, identifies applicable rules and regulations and requests an evidentiary or non-evidentiary hearing, may be the only pleading filed 6. The Rules of Evidence are also different. Pursuant to Fla. Stat. § 120.57(1):
Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath.
Hearsay is specifically permitted if it is used to supplement or explain other admissible evidence 7.
Discovery can also be very fast paced in APA proceedings. In summary hearings and bid protests, the final hearing takes place within 30 days of assignment to an Administrative Law Judge (ALJ) 8. Discovery must be completed prior to the final hearing and response dates can be as little as five calendar days.
Finally, there may be no immediate ruling obtained at the close of the administrative proceeding. Rather, after receiving and reviewing proposed recommended orders from the parties, the ALJ will enter a “recommended” order containing findings of facts and conclusions of law, which is then sent to the agency for entry of a final order 9.
While administrative proceedings may seem foreign to the typical legal practitioner, their importance and efficacy should not be overlooked. Ignoring the available points of entry in the process may leave your client with substantially less options for redress. Effective advocacy compels litigators to pursue these less-traveled roads and ensure the best outcome for their clients.
1 See, Agrico Chem. Co. v. Dep’t of Envtl .Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981).
2 See generally,Fla. Stat. §§ 120.569 and 120.57 and Fla. Admin. Code Chapters 28-101-28-112.
3 See, Rule 69O-106.211, Florida Administrative Code.
4 See, District Bd. of Trustees v. Caldwell, 959 So.2d 767, 770 (Fla. 4th DCA 2007).
5 See, Capeletti Bros., Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986).
6 Any issue not raised in the initial proceeding, however, may not be raised for the first time on appeal. See, Rosenzweig v. Dept. of Transportation, 979 So.2d 1050
(Fla. 1st DCA 2008).
7 See, Fla. Stat. §120.57(1)(c).
8 See, Fla. Stat. § 120.57(3)(e).
9 See, Rules 28-106.215 and 28-106.216, Fla. Admin. Code; In a rule challenge proceeding, the ALJ has final order authority. See, Fla. Stat. §120.56
By Maria Elena Abate and Sharlee H. Edwards
Colodny, Fass, Talenfeld, Karlinsky, Abate & Webb
100 SE 3rd Ave., 23rd Floor
Fort Lauderdale, FL 33394
954-492-4010
mabate@cftlaw.com
sedwards@cftlaw.com
www.cftlaw.com
South Florida Legal Guide 2013 Edition