Agency POLICIES

a/k/a Non-Rule Policy

• Policies are not rules. They have not go through rule making process. 
• Used because agency doesn't have enough factual data to go into rule making yet. 
• Helps agencies clarify what a rule will eventually be, policies will ultimately develop into rules. 
• Agency policies are supposed to published on the agency's website, but Frankel says good luck finding them, not user friendly sites.
• Disfavored by legislature who urges agencies to make rules instead of policies.
• Principles that govern rule making also govern policies:
• cannot be vague or capricious
• has to implement and interpret the delegated statutory authority and can't exceed that authority.

• Petition to challenge policy is sent directly to DOAH, follows same process as challenging proposed and existing rules.
• Cannot be challenged on the grounds of "invalid exercise of delegated legislative authority."
• EVERYTIME a policy is challenged the agency must establish the factual basis of the policy, i.e.:
• history of the policy
• reason for making the policy
• how did it come about 
• If you win on a policy challenge, you can get unlimited attorney's fees - this reflects the legislature's disfavor of policies.

1. We see the law but we don’t have factual support to rush into the rule making procedures.
2. There are a lot of related matters that need to be considered but have not been “tied down” yet.
3. We are going to go into rulemaking process but just have not started yet.

• If challenging a rule as to constitutionality (denying due process/equal protection) if it is a proposed rule, the ALJ can decide the constitutionality of PROPOSED RULES/POLICIES ONLY. 
• If we have an existing rule or statute, neither the ALJ or Agency can decide Constitutionality of an existing rule – ONLY THE JUDICIARY (has to go to court). 

CONSTITUTIONALITY:

Difference between proposed rules and existing rules.

Anytime you have an action with an agency no matter what it is, an admin type proceeding, you have to  exhaust your admin. Remedies meaning you have to stay away from the  judicial route. You have to go ahead and file your first petition followed by  whatever else follows the admin. Process (Basic rule of Admin Law). Reasons  for this are:

1. Courts don’t have the time or room to facilitate these cases.
2. Judiciary takes longer to decide these cases. Once you have exhausted your Administrative remedies, your first step in the judicial process will be in the  DCA.

EXCEPTION: where there is a constitutional issue on an existing rule, you can go to the Circuit Court.

Relevant Case: Bryant v. Beary

Bryant v. Beary:

Exhaustion of Administrative Remedies

and Primary Jurisdiction

FACTS: Special process server seeks appellate review by the District Court of Appeals (5DCA) of Sheriff's Office's decision to revoke his appointment as a process server for misconduct.  Sheriff's Office's moved to dismiss for lack of jurisdiction.

COURT: District courts of appeal have jurisdiction to review by way of plenary appeal, final “agency action”.  The APA provides that counties and municipalities are included within the scope of the APA only when there is a special law that includes them.  Court found that there is no law that includes the Sheriff's Office in the scope of the APA, therefore the District Court of Appeals does not have appellate jurisdiction to review the Sheriff's Office decision, only the Circuit Courts have jurisdiction.

• A circuit court or county court a basic trial court has primary jurisdiction over cases within their jurisdiction, no matter the type of dispute.
• This means the judicial court has jurisdiction of a case CORRECTLY.
• BUT these court judges will often decide the case has a lot of  Administrative ramifications they need answered by someone with more expertise in deciding this.
• The circuit court judge can decide to keep the case, but send it down to DOAH to have an admin hearing to determine the legal  and factual issues surrounding the admin process and make those findings of  fact and conclusions of law and then send it back to the primary court stating the findings of fact and conclusions of law, leaving the circuit court judge to decide the rest of the case and resume jurisdiction, in actuality they never lost jurisdiction.

In ADMIN LAW… the  primary jurisdiction is with the Administrative Divisions.

DECISIONS INVOLVING SUBSTANTIAL INTERESTS:

Explanation and Basic Facts

• Applies to:
• Licensing
• Permitting
• Disciplinary Actions
• When an agency makes a decision which affects the substantial interests of a person, business entity or organization.
• Can be done with or without challenging the rule or policy used against the person, BE or organization. - Slightly different process when you are also challenging the rule/policy see "Decisions Involving Substantial Interests w/ Rule Challenge"
• Two (2) Types of Hearings - Formal or Informal
• Can only get ATTY's FEES with these when you can show the agency had some malicious purpose in commencing the action.

Decisions Involving Substantial Interests:

TWO (2) TYPES of HEARINGS

FORMAL - 120.57(1) - where there are FACTUAL disputes - involve mini-trials, findings of law, recommended decisions, final decisions by agency, appeals to DCA, not that different from civil trial practice following Civil Procedure Rules - Agency issues Final Order, DOAH only gives Recommended Order.

INFORMAL - 120.57(2) - where there are NO factual disputes, i.e. "I don't think you applied the rules to the facts correctly." These are VERY RARE. Use to be that the agency could hold the agency themselves - the theory was that you are really disputing the facts, you are just working out what or how the rules apply - this really isn't the case anymore - now these primarily go to DOAH - there won't be witnesses called, but they will look at the documents, the law - and still issue a Recommended Order to the Agency who still has to render the Final Order
 * usually when parties go into a non-factual dispute informal hearing - they get in there and find a factual dispute and move it over

Decisions Involving Substantial Interests:

PROCESS

1. COMMENCEMENT - someone complains
2. FREE FORM PROCEEDING - agency's internal investigation
3. PROBABLE CAUSE PANEL
4. ISSUANCE of ADMINISTRATIVE COMPLAINT
5. POINT of ENTRY: 21 DAYS to PETITION to REQUEST HEARING
6. AGENCY RECEIVES PETITION: Agency has 15 DAYS to review, reply w/ no action OR send to DOAH for hearing.
7. DISCOVERY PROCESS
8. HEARING (Mini-Trial)
9. AFTER HEARING: ORDER - Doah issues Recommended Order and sends to Agency who issues Final Order, which is appealable to DCA.

Desicions Involving Substantial Interests:

FREE FORM PROCEEDINGS

and

PROBABLE CAUSE PANELS

FREE FORM PROCEEDINGS - preliminary investigation: agency's internal investigation - most of the time this is a result of a complaint but the agency can start out all on their own.

PROBABLE CAUSE PANELS - usually within professional licenses displine issues or complaints - they have 30 days to look at the results of the free form investigation and determine if there is probable cause to issue an administrative complaint - composed of the types of professionals that are involved in the said profession, i.e. doctors if medical, hair dressers if cosmotology - these are closed and not discoverable - the person who is the subject of it will have notice of it b/c usually during the free form investigation process the agency generally gets the other side of coin from the party who is the subject of investigation

Decisions Involving Substantial Interests:

ADMINISTRATIVE COMPLAINT Issuance

• If after the Agency's Free Form Proceeding and the Probable Cause Panel, the agency finds there is some wrongdoing or they have found something to address, they will issue an Administrative Complaint and this becomes the subject's point of entry.
• YOU HAVE 21 DAYS to PETITION to REQUEST HEARING- the Petition does not go to DOAH it goes directly to the Agency - if you are late the agency will go forward and you have lost your right to contest it, this can be very serious because they can take away your license; - if you get the petition to the agency in time but there is some deficiency with your petition - they will reject and give you another grace period (maybe 5 - 6 days) for an amendment

Decisions Involving Substantial Interests:

PETITION Requirements

• Petition:  (Florida Administrative Code 28.106)
    must be sent to the Clerk of the Agency - if you send it to the wrong place you have blown it 
• list your name and address of client
• name of agency
• explain how your substantial interests are affected - this is almost the same as STANDING - there must be: 1) immediate injury 2) zone of interest - that the statute and rule implemented by said statute
• how you got notice of the administrative complaint, constructive notice, service of process, etc.
• show what the disputed facts are OR if you don't have any disputed facts and you are just saying you aren't applying the law, statute or rules, correctly to my facts
• ultimate facts - what do you consider the most important ones
• cite any rules or statutes that you find relevant - usually the same ones the agency is using
• demand for relief - dismissal, license issuance, etc.

Decisions Involving Substantial Interests:

AGENCY RECEIVES PETITION

• Upon receiving your Petition, the Agency has 15 days to look it over and reply, they may:
• recognize the arguments in your petition and send you a letter saying they are dismissing the complaint, but this is unlikely because the agency is not an impartial party
• send it to DOAH for a hearing - the DOAH hearing officer will look at it and issue a scheduling order and pre-hearing conference within 5 days, if possible they like to have the hearing within 30 days of the date DOAH receives it, but it usually happens within 60 or 90 days - there are allowances for continuances based on discovery process, etc.

Decisions Involving Substantial Interests:

DISCOVERY PROCESS

• Chapter 119 of FL Statutes - Public Records Act -  first piece of discovery - any time you ask an agency for information anything that is in their files, you put a request into the Florida Public Records Act - you correspondence with the Clerk of the Agency usually the General Counsel by letter - you have to be kind of specific (its not expensive but you need to limit your request) - the agency has the obligation to give it to you - no deadline specified - they have to do it within a reasonable time - (usually 30 days), they can charge you (at most $1.00 per page, usually $.25, sometimes Nothing)
• OR USUAL DISCOVERY (Civ Pro) - Depositions, Interrogatories, Requests for Admissions, Request to Produce, 3rd Party Subpoenas, etc. - but note that ALJs cannot hold people in contempt so if someone is failing to comply with discovery requests - you then go to the Circuit Civil Court and get the order of the ALJ enforced by the Circuit Judge

Decisions Involving Substantial Interests:

HEARING (Mini-Trial)

·      Like TRIAL: everything goes opening statements, witnesses, evidence, closing arguments, transcripts, etc.

·     Burden of Proof:

• Clear & Convincing Evidence - just below reasonable doubt - disciplinary actions where you are denying someone a liberty interest
• Preponderance of the Evidence - permitting or licensing denials - burden is on the person applying to show by a preponderance of the evidence that they meet the requirements - preponderance of evidence (51%)
• Hearsay: admissible to prove supplemental facts, NOT ultimate issues or facts - still can be used pretty liberally and this is trial you can always try - practical purposes Prof Frankel's experience has been in disciplinary actions - most judges do not like to hear hearsay evidence - they usually want to run this like a real trial with real rules of evidence
• Admissible evidence: all relevant and material evidence
• Documentary Evidence: original docs, best evidence rule, etc. - but you can use copies the rules are little more lax
• Official Recognition = judicial notice: where the courts take judicial notice of published statutes, opinions, etc. - here it is called official recognition of previous agency decisions, FL Admin Code, certain docs in court or other official records
• ALJ can hear almost everything: xcept blatant hearsay that goes to an ultimate fact or some kind of fraud in documentary evidence - much more liberal
• MOTION practices: all the motions you would use in civil proceedings can be used in Admin law - but once the hearing is in process - like if there is a motion for summary judgment the ALJ will say I'll consider it in my recommended order - or if there were a Motion to Dismiss in the beginning when Petition is entered - generally its not a serious with such a motion - there not used very often - once of the reasons you may do it is if you are arguing the person doesn't have any standing (there are intervenors in these cases)

Decisions Involving Substantial Interests:

AFTER HEARING - ORDERS

• DOAH hearing officer issues a Recommended Order send to Agency - includes Recommended Findings of Fact and Recommended Conclusions of Law as well as Recommended Disposition
• Party is entitled to review Recommened Order - make comments and/or changes.  Party can (and should) file Exceptions to the agency head within 15 days- saying why you disagree and then the agency head has 15 days to reply - this preserves an errors for appeal, failing to do this could cause you to loose on appeal, i.e. Court may say you should have brought this attention of the agency head when the recommended order came out
• Agency issues Final Order -agency reviews Recommended Order as to whether or not the ALJ's finding is supported by competent and substantial evidence - if the agency rejects the recommended order they have to state with specificity the reasons for rejection
• Final Order is appealable to the DCA   
   

Decisions Involving Substantial Interests:

NON-LAWYER Representation

• Nonlawyers are permitted to represent parties in these cases.
• Nonlawyer representative has to go before ALJ and show that they are familiar with Admin Law, Procedure, Evidentiary Rules, the Code (Chapter 120).

Charlotte County v. Dept. of Community Affairs

(Agency use of Policy to develope rules)

FACTS: Fl Statute requires local govmts to adopt local comprehensive plans - the Dept of Comm Affairs created two (2) policies as part of FL Admin Code -  to see if comprehensive plans would pass muster with the State Plan. Charlotte County's plan was not approved and they took issue with the urban sprawl rules - they complained that the rules on urban sprawl were not properly established in rulemaking and are thus invalid - which had to be challenged in a separate proceeding

COURT: the rules never really dealt with urban sprawl and these urban sprawl issues were the reasons these local plans were rejected - urban sprawl was a policy by the Dept of Community Affairs and the plans were not approved because of this urban sprawl policy - the agency said we haven't made it a rule yet because we have really solidified our idea of this policy against urban sprawl - DOAH said yes they could use this urban sprawl policy because they can't yet really construct their definition of urban sprawl and there are other technical manuals that provide guidance of the issue of urban sprawl - these types of cases help flush out a definition of urban sprawl through having expert witnesses come in and talk about what urban sprawl is so that the agency can formulate a rule that they can put through formal rulemaking
 * Policy must be explicated so that a rule can be proposed!  Its ok to use a policy until you can establish rules...

Decisions Involving Substantial Interests:

WITH RULE CHALLENGE

VARIANCES

and

WAIVERS

• Means for resolving a controversy or answering a question/doubt concerning the applicability of a statutory provision or rule or order over which the agency has authority - i.e. if you have a client that is worried or unsure if they are going to violate a rule of some agency - then you would use a declaratory statement and file it with the agency.
• Your request for Decl Stmt must include - see Michelle's Notes FILL IN - the agency has 90 days to decide whether or not they will issue a declaratory statement - the agency will tell the client whether or not what they are doing will be permissible under the rules

JUDICIAL REVIEW:

Four (4) Requirements

Florida Birth Related Neurological Injury Compensation Act

NICA

General Info

Florida Birth Related Neurological Injury Compensation Act

NICA

DEFINTION of NICA Covered Child

Florida Birth Related Neurological Injury Compensation Act

NICA

Four (4) Factors ALJ Must Determine

1. Is the claim compensable, i.e. does the child fall within the NICA Definition?
2. Were the birthing services rendered by a participating physician? (some OBs opt out, but then they can sued in tort law).
3. Was Notice of the NICA plan given to the Mother? (required of doctors, nurses, hospital, etc.)
4. How much compensation can be awarded above and beyond the medical care for the child up to 100K?

Florida Birth Related Neurological Injury Compensation Act

NICA

PROCESS

• Circuit Court has NO jurisdiction over a negligence claim until there is a NICA determination

• Petition to determine if child is covered by NICA is sent directly to DOAH - statute of limitations is 5 years from date of birth; must include medical records w/ FL Birth Related Neurological Injury Association

• DOAH ALJ makes determination based on the Four (4) Factors

• DOAH issues Final Order

• Appealable to DCA - most surround whether child is substantially impaired v. partially impaired; whether the mother got notice; what treatment for the child will be covered

Florida Mental Health - BAKER ACT

(Florida Statute 394.451)

General Info

• Method by which individuals with mental illnesses are placed under care b/c they are a danger to themselves or others, usually when they have refused voluntary treatment or are incapable of making the decision themselves.
• Treatment can be inpatient or outpatient.

Florida Mental Health - BAKER ACT

(Florida Statute 394.451)

WHO CAN Baker Act?

• Circuit Court through Sworn Affidavit of Testimony - takes testimony of professionals, psychologists, spouse/relative, can be Ex Parte, but there must be enough evidence to find that the individual needs evaluation and cannot take care of themselves
• Law Enforcement Officials - if they witness behavior that causes reasonable belief there is a mental illness instead of arrest they can take them to Baker Act facitlity, entirely at their dicretion, they fill out form which is filed w/ Court and some agencies
• Physician treating the individual can petition
• Clinical Psychologists
• Social Workers

Florida Mental Health - BAKER ACT

(Florida Statute 394.451)

PROCESS

• Initial Baker Act Detainment - individual can be kept up to 72 hours w/o Court Order
• Psychologist/Physician examines and determines w/i that 72 hours if they can be released or need further treatment
• If the determination is for further treatment - Administration of facility petitions Circuit Court (usually heard by General Magistrate) to keep individual for up to 6 months
• State Attorney represents government to keep person in treatment - Public Defender represents patient
• Patient has RIGHT to Independent Psych Eval
• BURDEN is State to prove by CLEAR and CONVINCING EVIDENCE (denial of liberty interest)
• No liability for psych/phys for intiating Baker Act Petition
• At 5th month of treatment, if facility wants to keep patient, they file w/ DOAH who issues Final Order which is appealable to DCA (standard of review is competent and substantial evidence)