Florida Administrative Law Fall Exam

What is Admin law? 1. The legislature delegate powers to the agencies a. In taking agency action, are they keeping intact the intent of the legislature? Have they gone outside of that responsibility? b. Acts as the agent of the legislature c. Applies to executive branch entities called “agencies”, rather than to courts or legislatures 2. Statutory due process- all the various types of admin processes the agencies have to give you the opportunity to do a. Agencies are created by statute and they carry out functions laid out by that statute i. This is an organic/substantive statute (creates the agency and empowers it to carry out policy) ii. Procedural requirements within that agency are different within the federal agencies, Florida the same 3. Florida APA Chapter 120- Originally passed in 1961, amended frequently since a. Doesn’t just create the floor, creates a uniform set of due processes (unlike Federal APA) applicable to agency exercise of legislatively delegated power b. Requires similar treatment of situated people (uniform application) and requires justification for inconsistency in the application c. Overtime, APA has been modified to be more narrow over time d. Agencies are subject to the APA unless they have been expressly exempted by the legislature or courts i. If they are exempted from the APA they are not an agency e. Agencies must annually report to the Legislature and have legislative oversight (via JAPC) on reviewal of agency rule adoption i. Florida Legislature exercises much more control and oversight of Florida’s agencies than congress does over Federal Agencies f. Some agencies may “Sunset”, or automatically be abolished unless reauthorized by the legislature 4. Florida agencies- all exercise statutory power, even if constitutionally created. None have inherent power, must stay within legislators’ lines. a. Created by statute or the constitution i. The constitutional agencies do not have to follow the APA: plain language of the constitution governs, however, the legislature can pass laws to govern b. Most headed by an appointed individual by the governor, not elected, then confirmed by the Florida senate i. By Florida Constitution or Florida Statutes, certain agencies are headed by the elected Governor and Cabinet, or by an elected Cabinet officer. Why have agencies? 5. The legislature doesn’t have the time, expertise, or manpower to enforce the statute 1 Florida Administrative Law Fall Exam 6. Complex, fluid issues 7. Agency Function a. Regulatory: i. Expertise is the key justification for this function. ii. Founded in public health, safety, and welfare (police powers) 1. Take broad strokes of the legislature and adopt rules to do implement the legislature’s statute, setting quality and quantity metrics iii. Permitting and enforcement 1. Example Professional examination and licensing, health care facilities regulation; business licensing, agricultural regulation b. Benefactive i. Provide things to the people of Florida 1. Where the agency does stuff for people 2. Grants, assistance, programs administration c. Research/Advisory i. Advise themselves and the legislature and the governor/cabinet ii. Especially when the legislature has set up new programs iii. Comprehensive planning iv. Example: Planning-DEO d. Managerial i. The specialized function used when the state of Florida procuring goods from vendors ii. Manages state-owned lands iii. Develop and implement contract bidding processes and procedures, award Sec contracts for goods and services e. Combination (especially the big ones with many programs) Typical Administrative Process 1. The legislature enacts a substantive statute and tasks an agency 2. Rulemaking process, taking delegated power and developing broad statute to real implementation a. Permitting and licensure requirements, qualification, investigation, and enforcement 3. Rule Challenge, where the regulated public (those “substantially affected”) can legally challenge the rule in an administrative hearing a. ALJ’s who preside over the hearings are not part of the agencies (this is unique to Florida) i. Act as judge and jury ii. Also hear challenges when an agency denies a regulated person and the person wants to challenge their denial (as-applied) Division of Administrative Hearings 1. 31 state-wide appointed judges 2. Assigned to geographic districts 2 3. Authorized by statute to conduct evidentiary hearings involving disputed issues of material fact 4. Authorized to adjudicate challenges to agency rules (existing, proposed, unadopted) 5. ALJ’s Adjudicate rule challenges and as-applied challenges through issuing recommended orders and the agency issues a final order on 120.569 and 120.57(1) types of hearings a. 120.52(15) – “Recommended Order” – the official recommendation of an administrative law judge assigned by [DOAH] . . . for the final disposition of a proceeding under ss. 120.569 and 120.57. b. 120.52(7) – “Final Order” – a written final decision which results from a proceeding under s. 120.56, s. 120.565, 120.57 . . . which is not a rule, and which is not excepted from the definition of a rule, and which has been filed with the agency clerk. 6. Protections built into the statute to ensure the adoption of the ALJ’s recommended order as the final order 120.52(15) Example: Section 381.986, Florida Statutes- Medical Use of Marijuana 8. Designates the Department of Health (“DOH”) as the agency responsible for administering the program. DOH is authorized and required to adopt rules to implement the program. 9. Imposes limitations on the qualification of patients to be prescribed marijuana 10. DOH proposed rules to implement section 381.986. a. Challenged by substantially affected persons on the ground that the rules exceeded DOH’s statutory authority. b. Invalidated by Division of Administrative Hearings (“DOAH”) Administrative Law Judge. c. Re-proposed; challenged again; determined valid. Florida’s non-delegation doctrine- Legal source is Article II, Section 3 of the Fla. Constitution. 11. Fundamental policy decisions must be made by the legislature 12. Administration of policy by agencies must be pursuant to legislatively established standards of limiting the exercise of agency discretion 13. Courts must be able to discern, on judicial review, whether the intent of the legislature is being carried out by the agency pursuant to established standards 14. Federal Constitutional idea of whether an intelligible principle guides the exercise of executive branch authority 15. Florida Constitutional Idea of “No person belonging to one branch shall exercise any powers appertaining to either of the other branches shall exercise any powers appertaining to either of the other branches unless expressly provided herein a. Much stricter than the Federal Standard 16. Means legislation delegation has to (provide sufficient guidelines and standards to the executive branch agency to ensure that the agency implement legislatively prescribed policy, rather than formulating fundamental policy)