Administrative LawSectionNewsletter

Vol. XXVI, No. 4 Elizabeth W. McArthur, Editor June 2005

INSIDE:

Apples and Oranges.................... 3

Appellate Case Notes.................. 5

Agency Snapshots ...................... 9

Continued, page 11

Continued, page 2

From the Chairby Robert C. Downie, II

As the year winds down, and theweather begins to heat up, let mefirst say what a privilege and a plea-sure it has been to be Section Chair.Seems like a short time ago that Iwas elected into the Treasurer’s slot,wondering and worrying how I couldlead such an august group of judgesand lawyers in a mere three years.Actually, I’m still wondering, but Ihave given up on the worrying be-cause it is too late to do anythingabout it. I deeply appreciate all thehelp I received this year from the Ex-ecutive Council, our Bar Liaison MikeGlazer, and of course, Jackie Werndli,administrator extraordinaire.

To update the certification process,our Section and the GovernmentLawyers Section have reached con-sensus on the certification proposalfor Administrative and GovernmentLaw. Please believe me when I saythat the road to consensus was rockyand contained a few detours, but thetrip was worth it. Barring unforeseenissues, the Board of Legal Specializa-tion and Education will be voting onthe proposal at the Florida Bar meet-ing in June. If all goes according toschedule, the Board of Governors willact on the proposal next January.Depending on how long it takes to setup the program, we could be certify-

ing lawyers in Administrative andGovernment Law in 2006-07. As Ihave said before, forecasting is riskybusiness, but these projections lookpretty solid.

Appellate Attorney’s Fees Under Section120.595, Florida StatutesResidential Plaza at Blue Lagoon, Inc. v. Agency for HealthCare Administration, 891 So. 2d 604 (Fla. 1st DCA 2005)by Paul H. Amundsen

Among the statutory provisionsfor attorney’s fees in Florida’s Admin-istrative Procedure Act is Section120.595(5), Florida Statutes. Thisstatute provides for attorney’s feesnot only for frivolous or meritlessappeals, but also where “the agencyaction which precipitated the appealwas a gross abuse of the agency’s dis-cretion.”

There is no objective standard to

identify a “gross abuse of agency dis-cretion.” Examples of such a findingare: Titzel v. Department of Profes-sional Regulation, 599 So. 2d 279(Fla. 1st DCA 1992)(revocation ofengineer’s license where agency con-ceded it was error to do so); Doctors’Osteopathic Medical Center v. De-partment of Health & RehabilitativeServices, 498 So. 2d 478 (Fla. 1st DCA1986)(changing the hearing officer’s

recommendation under the totality ofthe circumstances) and UniversityCommunity Hospital v. Departmentof Health & Rehabilitative Services,493 So. 2d 2 (Fla. 2nd DCA 1986)(ar-bitrary denial of certificate of needapplication).

Recently the First District Courtof Appeal applied Section 120.595(5),Florida Statutes, and held thatthe Agency for Health Care

2

Administrative Law Section Newsletter Volume XXVI, No. 4 • June 2005

FROM THE CHAIRfrom page 1

This newsletter is prepared and published by the Administrative Law Sectionof The Florida Bar.

Robert C. Downie, II, Tallahassee (robert.downie@dot.state.fl.us) ................... Chair

Deborah K. Kearney, Tallahassee (debby.kearney@myfloridahouse.gov) ..Chair-elect

Patrick L. (Booter) Imhof (imhof.booter@flsenate.gov) ................................ Secretary

J. Andrew Bertron, Jr. (andy@hueylaw.com) ................................................. Treasurer

Elizabeth W. McArthur, Tallahassee (emcarthur@radeylaw.com) ....................Editor

Jackie Werndli, Tallahassee (jwerndli@flabar.org) ............ Program Administrator

Colleen P. Bellia, Tallahassee (cbellia@flabar.org) ............................................ Layout

Statements or expressions of opinion or comments appearing herein are thoseof the contributors and not of The Florida Bar or the Section.

Although I’d like to provide an up-date on legislation, as of the time thisarticle is being written it is still tooearly in the session to start makingbold predictions. In my limited legis-lative experience, the day before ses-sion ends is often too early. Suffice itto say that the Administrative Pro-cedure Act has not been the subjectof as many bills as in years past, al-though there will likely be somechanges with respect to publicationof the Florida Administrative Weekly,as well as contemplation of equitabletolling with respect to timely filingpetitions. One bill that drew imme-diate attention would have requiredlegislative approval of every agencyrule change. This proposal was laterreplaced with language dealing withthe role of JAPC. My advice is to readfuture newsletter issues for legisla-tive updates.1

It looks as though the Board ofGovernors will approve changes inthe way the Bar finances and Sectionfinances will intermix. Although theactual changes have been sort of a

moving target, the basics are that inthe future, starting in 2006-07, (1)the Bar will charge each Section aline item expense for some generaloverhead, a charge the Bar up untilnow has collected but rebated to theSections; (2) each Section must con-tribute, from dues, $17.50 per mem-ber, up from $12.50; and (3) the Barand the Sections will split CLE pro-ceeds on a net, rather than gross,profit basis (i.e., if a CLE course doesnot make money, the Section willmake no money). The changes shouldnot have too great an impact on ourSection, although we have alreadyvoted to raise dues by $5 to $25 permember. Otherwise, we would havefaced either raising dues further orpossibly sustaining a year-end loss.

One thing I will not miss as Chairis writing these quarterly columns.I frequently nod off while doing so,and I can only imagine how manyother cases of insomnia I have cured.For those of you who “bore” with me(get it?), I appreciate your dedicationand admire your fortitude. In an ef-fort to reward such effort with some-thing useful, here is a top ten list ofstrategies I found really helped methis year as Chair:

1. On difficult issues, have lots andlots and lots of meetings.

2. Figure out who your friends are,and then tick them off.

3. Stay [on] the [golf] course.4. Use the Chair’s column as a way

to communicate with the Section andwatch the responses roll in!

5. Have a clear message. Some-thing like, “Hello, I am out of the of-fice right now so please leave yourname and . . . .”

6. Find a good scapegoat (not aseasy as it sounds).

7. Remember that history repeatsitself, and it’s always five o’clock some-where.

8. Make sure you are surroundedby capable, bright, energetic, gulliblepeople.

9. Take “no” for an answer, as longas the question is, “Do you mind if Ipull rank on you?”

10. Practice holding your breath foran entire legislative session.

Hope everyone has a great summer.

Endnotes1 Larry Sellers in years past has been kindenough to provide newsletter and Bar Journalarticles on APA legislative activity, althoughfor Larry this is often akin to writing “What IDid During Spring Break.”

JOIN THE FLORIDA BAR'SLAWYER REFERRAL SERVICE!

In 2003, The Florida Bar Lawyer Referral Staffmade over 133,000 referrals to people seek-ing legal assistance. Lawyer Referral Serviceattorneys collected over $5.5 million in feesfrom Lawyer Referral Service clients.

The Florida Bar Lawyer Referral Service:• Provides statewide advertising• Provides a toll-free telephone number• Matches attorneys with prospective clients• Screens clients by geographical area and

legal problem• Allows the attorney to negotiate fees• Provides a good source for new clients

CONTACT THE FLORIDA BAR TODAYFOR MORE INFORMATION.

CONTACT: The Florida Bar Lawyer ReferralService, 651 E. Jefferson Street, Talla-hassee,FL 32399-2300, phone: 850/561-5810 or 800/342-8060, ext. 5810. Or download anapplication from The Florida Bar's website atwww. FLORIDABAR.org.

Is your E-MAIL ADDRESS current?

Log on to The Florida Bar’s website (www.FLORIDABAR.org) and usethe form found under “Member Services,” then “Index.”

3

Administrative Law Section NewsletterVolume XXVI, No. 4 • June 2005

continued...

Apples and OrangesKerper v. Department of Environmental Protection,894 So. 2d 1006 (Fla. 5th DCA 2005)by Sam Power

Counsel for a state agency mayfind her/himself defending theagency’s free form decision1 in a Sec-tion 120.57(1)2 hearing when, unex-pectedly, her opponent challenges thevalidity of the free form decision as-serting the applicable agency policyor statutory interpretation (hereinaf-ter “unadopted rule”)3 meets the defi-nition of a rule but has not beenadopted as a rule. A timely objectionon the grounds that the proceedingis not a rule challenge under Section120.56 should keep the proceeding ontrack, but what if the objection isoverruled? Even worse, what if anunadopted rule issue is raised for thefirst time on appeal?

Since 1993 the APA has mandatedrulemaking4 when feasible, but theAPA leaves open a small window inSection 120.57(1)(e) for using anunadopted rule in a Section 120.57(1)proceeding. Furthermore, the APAprovides that the exclusive remedyfor a violation of the rulemakingmandate is a Section 120.56(4) chal-lenge proceeding. See §120.56(4)(f). Ifa Section 120.56(4) challenger is suc-cessful, the agency must immediatelycease all reliance on the unadoptedrule. See §120.56(4)(d).

Consider the Kerper opinion. Mr.Kerper and his business initiated aSection 120.57(1) proceeding to chal-lenge the Department of Environ-mental Protection’s (“DEP”) free formdetermination that he was obligatedto clean up contamination caused byused motor oil spilled on his businesspremises. DEP prevailed at the Divi-sion of Administrative Hearings(“DOAH”) and adopted the recom-mended order. DEP’s failure to adoptthe applicable policy as a rule was notraised at DOAH.

Mr. Kerper appealed to the FifthDistrict Court of Appeal. The Courtreversed DEP’s final order on twogrounds: first, the lack of competentsubstantial evidence supporting thefree form determination; and sec-ond, DEP’s failure to adopt as a rulethe policy it used in making its free

form determination. Had the Courtstopped with the first grounds forreversal, the opinion would raise noconcerns about inconsistency withthe APA or precedent.

What does the APA say about anagency relying on an unadopted rulein a Section 120.57(1) proceeding? Itis permitted, so long as the agency isable to explicate the unadopted rulebefore the Administrative Law Judge(hereinafter ALJ) as set forth in Sec-tion 120.57(1)(e). In contrast to anadopted rule, the unadopted rule en-joys no presumption of validity. Sub-section (1)(e)2. describes the showingrequired of the agency’s counsel toexplicate an unadopted rule beforethe ALJ. The Kerper opinion does notmention this option.

The APA allows a person substan-tially affected by a proposed rule, anexisting rule, an emergency rule, oran unadopted rule to initiate a rulechallenge proceeding in which theALJ, not the agency, has final orderauthority. See §120.56(1) through (5).Counsel for the substantially affectedparty in a Section 120.57(1) proceed-ing is well advised to initiate a con-current Section 120.56 challenge ifthere is a substantial issue about thevalidity of a rule, adopted orunadopted, relied on by the agency.For a case where such a strategy wassuccessfully used, see Department ofChildren and Family Services v. I.B.and D.B., 891 So. 2d 1168 (Fla. 1stDCA 2005).

In a Section 120.56(4) proceeding,agency counsel can defend the con-tinued use of an unadopted rule onlyby proving that rulemaking is nei-ther feasible nor practicable. To pre-vail, agency counsel must persuadethe ALJ that the unadopted rule istruly incipient and evolving policy,5

or that adjudication on a case bycase basis is the more effectivemeans of implementing the under-lying statute.6 Section 120.54(1)(a)describes the factual basis an agencymust prove to establish thatrulemaking is neither feasible nor

practicable. If agency counsel is un-successful in defending anunadopted rule in a Section 120.56(4)proceeding, the agency must “imme-diately discontinue all reliance” onthe unadopted rule, and pay thechallenger’s attorney’s fees! See§§120.56(4)(d) and 120.595(4). Infact, agency counsel’s best course ofaction in a Section 120.56(4) proceed-ing is usually to advise his client toretreat, i.e., prior to the final hearingthe agency may initiate rulemakingand thereby avoid the risk of a slamdunk by the challenger. See§120.56(4)(e); Osceola Fish Farmersv. South Florida Water ManagementDistrict, 830 So. 2d 932 (Fla. 4th DCA2002). Contrast this slam dunk out-come to a Section 120.57(1) proceed-ing where, subject to the explicationrequirement, an agency may rely onan unadopted rule.

In Exclusive Investment v. Agencyfor Health Care Administration, 21F.A.L.R. 1742 (AHCA 1999); aff ’dwithout opinion, 731 So. 2d 1275 (Fla.1st DCA 1999), the ALJ used the rulechallenge “feasibility” test in a Sec-tion 120.57(1) proceeding to rejectthe agency’s free form decision basedon an unadopted rule. The agency re-jected the recommended order, suc-cessfully relying on Christo v. Depart-ment of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995); rev. dis-missed, 660 So. 2d 712 (Fla. 1995)[Citing the plain language of the stat-ute, the Court held that a Section120.56(4)7 proceeding is the exclusiveAPA remedy for challenging anagency’s use of an unadopted rule].In Manasota-88, Inc. v. Department ofEnvironmental Regulation, 481 So.2d 948 (Fla. 1st DCA 1986), the Courtremanded for further Section120.57(1) proceedings to allow DEP’spredecessor agency the opportunityto explicate the unadopted rule it re-lied on to make the free form decisionat issue. The Manasota opinion in-cludes citations going as far back asthe venerable opinion in McDonaldv. Department of Banking and Fi-

4

Administrative Law Section Newsletter Volume XXVI, No. 4 • June 2005

APPLES AND ORANGESfrom page 3

nance, 346 So. 2d 569, 577 (Fla. 1stDCA 1977), on the explication of anagency’s policy statement which hasnot been adopted as a rule.

The bottom line: Agency counselshould strongly advise his agency toformally adopt a policy or statutoryinterpretation when rulemaking isfeasible. But if he finds himself in aSection 120.57(1) final hearing inwhich his agency has relied on anunadopted policy or statutory inter-pretation, he should have a witnessstanding by prepared to give testi-mony explicating the unadopted rule.

Endnotes:1 A “free form decision” is a decision by anagency’s staff, which has ripened to the pointwhere written notice to the substantially af-fected person must be given along with no-tice of the right to initiate an adjudicatoryproceeding under Sections 120.569 and120.57. See e.g., Capeletti Brothers v. Dept. ofTransportation, 362 So. 2d 346 (Fla. 1st DCA1978)(Free form proceedings are the “everyday” way that an agency makes its regulatorydecisions, as distinguished from legally struc-tured adjudicatory proceedings under theAdministrative Procedure Act.)2 References to Chapter 120, Florida Statutes,are abbreviated by using the “APA”.3 In the evolution of the APA, this has beenreferred to variously as policy, “nonrulepolicy,” “incipient policy,” and “incipientrulemaking.”4 The rulemaking mandate is now found atSection 120.54(1)(a).5 For more on incipient agency policy, seeChristo v. Department of Banking and Fi-nance, 649 So. 2d 318, 320 (Fla. 1st DCA1995); rev. dismissed, 660 So. 2d 712 (Fla.1995).6 Cf., Department of Legal Affairs v. Fatherand Son Moving & Storage, 643 So. 2d 22 (Fla.4th DCA 1994); rev. den., 651 So. 2d 1193 (Fla.1995).7 Formerly Section 120.535.

Sam Power graduated from the Uni-versity of Florida, for both under-graduate and law school. He has beenworking extensively with the APAsince 1985. He has served as agencyclerk at both HRS and AHCA, andpresently serves as agency clerk at theDepartment of Health. As agencyclerk at those agencies, his dutieshave included drafting the final or-ders for Section 120.57(1) and (2) pro-ceedings.

We’re Ready to Help!Florida Lawyers Assistance, Inc. takes the firm position that alcoholism, sub-stance abuse, addictive behavior, and psychological problems are treatableillnesses rather than moral issues. Our experience has shown that theonly stigma attached to these illnesses is an individual’s failure to seekhelp. FLA believes it is the responsibility of the recovering legal communityto help our colleagues who may not recognize their need for assistance. Ifyou or an attorney, judge, law student, or support person you know isexperiencing problems related to alcoholism, drug addiction, other ad-dictions, depression, stress, or other psychological problems, or if youneed more information concerning FLA or the attorney support meet-ings, please call the numbers listed below.

PLEASE BE ASSURED THAT YOUR CONFIDENTIALITY OR THAT OFTHE INDIVIDUAL ABOUT WHOM YOU ARE CALLING WILL BEPROTECTED.

Florida Lawyers Assistance, Inc.

How to Reach FLA:FLA Toll-Free Hotline: (800) 282-8981 (National)FLA Judges’ Hotline (888) 972-4040 (National)

E-Mail: fla-lap@abanet.org

Know the RULES!Student

Professionalism HandbookThe Student Professionalism Handbook is ideal for attorneys whowant to have “The Rules” in a thinner, more accessible format.

The handbooks are $10.00 per copy and contain the Rules Regulatingthe Florida Bar, the Ideals and Goals of Professionalism, theGuidelines for Professional Conduct, the Florida Standards forImposing Lawyer Sanctions, the Creed of Professionalism and the Oathof Admission to The Florida Bar —all in a booklet less than ¼" thick! _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Please send me ___ copy(ies) of the Student ProfessionalismHandbook at $10 ea. (plus tax)

Name: ____________________________ Bar No. ______________

Address: ________________________________________________

City/State/Zip: ____________________________________________

Mail to: Paula StephensonCenter for Professionalism850/561-5743

5

Administrative Law Section NewsletterVolume XXVI, No. 4 • June 2005

APPELLATE CASE NOTESby Mary F. Smallwood

continued...

RulemakingKerper v. Department of Environmen-tal Protection, 30 Fla. L. Weekly 215(Fla. 5th DCA, January 14, 2005)

Kerper operated an auto parts sal-vage operation on land leased fromDonald Joynt. After a property dis-pute between the parties, Kerper va-cated the property prior to an inspec-tion performed by the Department ofEnvironmental Protection (“DEP”).During that inspection, Joynt toldDEP that Kerper was responsible fora leaking 55 gallon drum, containingwhat appeared to be used oil, andother materials disposed of on site.DEP issued a Notice of Violationagainst both parties. Joynt settledwith DEP, but Kerper requested anadministrative hearing.

The administrative law judgefound that Kerper was guilty of onecount of failing to respond to used oildischarges, and DEP entered a finalorder adopting the recommended or-der. The final order provided thatKerper was jointly and severally li-able with Joynt to conduct activitiesset forth in DEP’s Corrective Actionsfor Contaminated Site Case. Thatdocument contains specific actionsthat must be performed by respon-sible parties where there is contami-nation at a site, including assessmentof the contamination and remedialactivities.

On appeal, Kerper argued that theCorrective Actions document was anunpromulgated rule. The courtagreed and reversed. The court heldthat the Corrective Actions wereclearly statements of general appli-cability under Section 120.52(15),Fla. Stat., and created mandatoryduties for respondents in enforce-ment actions by DEP. It rejected ar-guments by DEP that Section376.30701, Fla. Stat. (2003), gaveDEP the authority to use the Correc-tive Actions. That statute wasadopted to provide that DEP use riskbased corrective action in a varietyof cleanup situations. In fact, thecourt noted that Section 376.30701specifically required the agency to

adopt implementing rules by July2004.

Kerper also argued that there wasinsufficient evidence to support afinding that he was responsible forthe used oil contamination. Again,the court agreed. It found that therewas no evidence that the dischargefrom the 55 gallon drum occurredbefore Kerper vacated the property.Moreover, the court was concernedthat DEP staff simply presumed thedischarged materials were used oilbased on site observations withoutconducting laboratory sampling.While it did not decide whether DEPmust conduct analytical testing inevery enforcement case, it rejectedDEP’s reasoning that doing so wouldbe too expensive.

Department of Children and FamilyServices v. I.B. and D.B., 30 Fla. L.Weekly 306 (Fla. 1st DCA, January 31,2005)

I.B. and D.B. challenged a rule ofthe Department of Children andFamily Services providing that indi-viduals attempting to adopt fosterchildren did not have the right tochallenge a decision of the Depart-ment placing the children in anotherhome. In this case, the petitionershad been foster parents to the childfor more than six months and appliedto adopt the child when parentalrights were terminated. The Depart-ment, however, placed the child withother relatives. At the time the fos-ter parents’ application was denied,the Department’s rules required thatapplicants be notified of theDepartment’s decision with respectto an adoption application and begiven notice of their right to a Sec-tion 120.57 hearing. I.B. and D.B.filed a request for formal hearingwhich was referred to the Division ofAdministrative Hearings. Subse-quent to that referral, the Depart-ment adopted the challenged rule,and the petitioners filed the rulechallenge.

The administrative law judge inthe rule challenge held that the rule

was an invalid exercise of delegatedlegislative authority, concluding thatthe Department did not have specificstatutory authority to adopt the rule.The court affirmed.

The Department had cited Sec-tions 120.57 and 120.68, Fla. Stat., inconjunction with Sections 409.026(8)and 409.145, Fla. Stat., as the lawbeing implemented by the rule. Thecourt concluded that the cited provi-sions of the Administrative Proce-dure Act provided no authority for anagency to unilaterally exempt itselffrom the Act. It noted that Section409.026(8) had been repealed prior tothe rule being proposed. Finally, Sec-tion 409.145 conferred only broadpowers and duties on the Depart-ment and contained no language thatwould give the Department the rightto eliminate a substantially affectedperson’s right to a hearing.

Review of Recommended OrderRoche Surety and Casualty Co., Inc.v. Department of Financial Services,30 Fla. L. Weekly 386 (Fla. 2d DCA,February 9, 2005)

Roche and Willie David, a bailbondsman, entered into an agree-ment under which Roche held build-up funds to secure open bail bond li-abilities. That agreement wasterminated by the parties in June2000. A year later, David complainedto the Department that Roche hadnot returned the funds, in violationof Section 648.29(3), Fla. Stat. The re-lationship between David and Rochebecame acrimonious, and Roche fileda lawsuit alleging that David en-gaged in defamation and civil extor-tion.

On March 3, 2003, the Departmentsent Roche a letter advising it thatDavid had discharged all of his li-abilities on August 23, 2002, makingrepayment of the build-up funds dueon February 23, 2003. Roche imme-diately filed a motion in circuit courtseeking a prejudgment writ of at-tachment for the build-up funds toprotect its interests. While the courtconducted a hearing on the motion in

6

Administrative Law Section Newsletter Volume XXVI, No. 4 • June 2005

APPELLATE CASE NOTESfrom page 5

March, it did not enter an ordergranting the request until August2003. David consented to the entry ofthat order.

In September 2003, the Depart-ment entered an order to show causeagainst Roche alleging that it hadviolated Section 648.29(3) by failingto repay the build-up funds in atimely manner. Roche requested aformal administrative hearing. Aftera final hearing, the administrativelaw judge entered a recommendedorder finding that there had not beena willful violation as required by Sec-tion 648.29(3) and concluding thatRoche was entitled to keep the fundsuntil the circuit court order wasmodified or withdrawn.

The Department adopted the find-ings of fact, but disagreed with whatit deemed a conclusion of law, thatRoche’s holding of the funds betweenFebruary 25, 2005, and the entry ofthe circuit court order in August wasa willful violation of the statute. Itimposed a $10,000 penalty in the fi-nal order.

On appeal, the court reversed. Itheld that the Department had incor-rectly characterized the determina-tion of willfulness as a conclusion oflaw when it was a factual determina-tion within the sole purview of theadministrative law judge.

StandingToth v. South Florida Water Manage-ment District, 30 Fla. L. Weekly (Fla.4th DCA, February 9, 2005)

Toth, a chief environmental scien-tist for the Water Management Dis-trict, challenged an action of the Dis-trict demoting him and transferringhim to another regional office of theDistrict. The District dismissed thepetition on the grounds that his sub-stantial interests had not been af-fected. On appeal, the court affirmed.

The court held that since Toth hadno employment contract with theDistrict, he had no substantial rightsbeing affected. It rejected Toth’s reli-ance on Hasper v. Department of Ad-ministration, 459 So. 2d 398 (Fla. 1st

DCA 1984), where a Senior Manage-ment Service employee was allowed

to challenge the agency’s dismissalbecause at that time there was astatutory right to file a challenge.Here, the court noted, there was nostatute authorizing such a challenge.

Dillard & Associates Consulting En-gineers v. Department of Environ-mental Protection, 30 Fla. L. Weekly512 (Fla. 1st DCA, February 22, 2005)

The Department of Transporta-tion (“DOT”) and Dillard & Associ-ates entered into an agreement un-der which Dillard & Associatesoperated five DOT wastewater treat-ment plants. Under the agreement,Dillard & Associates was to obtainnecessary regulatory permits. Theagreement further provided thatDillard & Associates would pay anyfines or penalties related to the op-eration of the plants. The Depart-ment of Environmental Protection(“DEP”) determined that certain vio-lations of its rules, including failureto obtain a required permit, had oc-curred. To resolve these alleged vio-lations, DOT entered into a consentorder with DEP under which itagreed to pay penalties of $45,000.

Dillard & Associates filed a peti-tion for formal administrative hear-ing challenging whether a penaltyshould be imposed on DOT andwhether the amount of the penaltyshould be mitigated or reduced. DEPdismissed the petition with prejudice,concluding that Dillard & Associates’substantial interests were not af-fected by the consent order betweenDEP and DOT.

The court affirmed. It agreed withthe DEP that Dillard & Associateswas not bound by the consent ordersince it had not been afforded an op-portunity to appear. Accordingly,Dillard’s substantial interests werenot affected. Instead, Dillard couldcontest the factual basis for its liabil-ity as an indemnitor in circuit court.

TimelinessDepartment of Corrections v.Chesnut, 30 Fla. L. Weekly 160 (Fla.1st DCA, January 7, 2005)

Chesnut, a career service em-ployee of the Department of Correc-tions, was notified that his positionwas being reclassified to select ex-empt service. Shortly thereafter, hereceived notice of his terminationfrom employment. That notice, which

did not give a reason for his dis-missal, stated that as a select exemptemployee he had no right to appealhis termination to the Public Em-ployees Relations Commission(PERC). Chesnut did not file an ap-peal of his dismissal.

Approximately a year later, helearned that the Department had in-formed the Criminal Justice Stan-dards and Training Commission thatChesnut had been dismissed becauseof substantiated charges of sexualharassment. He requested a formaladministrative hearing to contestthose charges and clear his name.The administrative law judge foundthat the charges were not substanti-ated and that Chesnut’s name shouldbe cleared. While the Departmentadopted most of the findings of fact,it rejected the judge’s conclusions oflaw as to what constitutes sexualharassment and his recommendationthat Chesnut’s name be cleared.Chesnut did not appeal.

Subsequent to these events, theFirst District issued its opinion inDickens v. Department of JuvenileJustice, 830 So. 2d 135 (Fla. 1st DCA2002), holding that a public employeehas the right to appeal a suspensionwhere the events resulting in thesuspension arose while the employeewas career service even though theposition was subsequently reclassi-fied as select exempt. Based on thisdecision, Chesnut filed an appealwith PERC of his 1999 termination.

The PERC hearing officer con-cluded that the time for filing theappeal should be equitably tolledbased on Machules v. Department ofAdministration, 523 So. 2d 1132 (Fla.1988). PERC agreed, orderingChesnut reinstated and awardingback pay. PERC concluded that thetermination letter was clearly mis-leading about Chesnut’s rights toappeal his termination.

On appeal, the Department ar-gued that the letter was not clearlymisleading and that Dickens couldnot be applied retroactively. Thecourt agreed and reversed. The courtheld that the termination letter wasan accurate statement of the law atthe time it was sent. Therefore, theconclusion that the letter was mis-leading essentially resulted in theretroactive application of the Dickenscase. It held that retroactive applica-

7

Administrative Law Section NewsletterVolume XXVI, No. 4 • June 2005

continued...

tion is only appropriate when the is-sue has been raised in the lower tri-bunal and the case is either pendingor not yet final.

LicensingResidential Plaza at Blue Lagoon,Inc. v. Agency for Health Care Admin-istration, 30 Fla. L. Weekly 259 (Fla.1st DCA, Jan. 24, 2005).

See feature article.

Emergency OrdersDaube v. Department of Health, 30Fla. L. Weekly 514, Order GrantingMotion for Stay (Fla. 1st DCA, Febru-ary 22, 2005)

Daube challenged an emergencyorder of the Department of Healthsuspending his license to practicemedicine. The emergency order wasissued based on Daube’s use of anunapproved product for wrinkle re-duction procedures without his pa-tients’ knowledge. Daube argued thathe had immediately ceased use of theproduct when he became aware ofreports of danger associated with theproduct and destroyed his remainingsupply.

The court granted Daube’s motionto stay the emergency suspension ofhis license, and issued an opinion toexplain its ruling. It concluded thatthe order was overly broad. It notedthat the order did not allege that anyof the patients were injured orharmed by the use of the product.Therefore, the court granted the stayon condition that Daube halt all useof the product, and the Departmentwas authorized to oversee Daube’scompliance with the provisions of thestay.

Attorney’s FeesDaniels v. Department of Health, 30Fla. L. Weekly 143 (Fla., March 10,2005)

Daniels prevailed in an adminis-trative enforcement action by theDepartment of Health when the De-partment voluntarily dismissed itscomplaint prior to a final hearing.She then sought attorney’s fees un-der Section 57.111, Fla. Stat., theFlorida Equal Access to Justice Act.The Administrative Law Judge de-nied that request, finding that shewas not a “small business party” asthat term is defined in Section57.111(3)(d), relying on Florida Real

Estate Comm’n v. Shealy, 647 So. 2d151 (Fla. 1st DCA 1994). The ThirdDistrict affirmed; and Daniels ap-pealed, alleging conflict with Albertv. Department of Health, 868 So. 2d1130 (Fla. 4th DCA 1999) and Ann &Jan Retirement Villa, Inc. v. Depart-ment of Health and RehabilitativeServices, 580 So. 2d 278 (Fla. 4th DCA1991).

Daniels was the sole owner ofSouth Beach Maternity Associates,Inc., a subchapter-S corporation. Inaffirming the decision below, theCourt concluded that the language ofSection 57.111, Fla. Stat., was clearand unambiguous. A small businessparty is defined as either “a sole pro-prietor of an unincorporated busi-ness” or “a partnership or corpora-tion.” In this case, the administrativecomplaint was directed at Daniels inher individual capacity, not at hercorporation. Thus in this case,Daniels did not fit under either statu-tory category. The court noted thatthe result of this interpretationmight be seen as unfair by prevent-ing a prevailing party from collectingattorney’s fees where the action wasbrought against the individual. How-ever, it further noted that the federalEqual Access to Justice Act, uponwhich the state law was based, veryspecifically provided for an award toan individual regardless of whethera corporation was involved. It con-cluded that the Florida Legislaturecould easily have provided for suchan award in the state act.

Statutory ConstructionOsorio v. Board of Professional Sur-veyors and Mappers, 30 Fla. L.Weekly 712 (Fla. 5th DCA, March 11,2005)

Osorio, who had attended the Na-tional University of Costa Rica andobtained the equivalent of an Associ-ate in Science degree, applied to takethe licensure examination for landsurveying. He asserted that he quali-fied to take the exam under Section472.013(2)(a), Fla. Stat. After an in-formal hearing, the Board denied hisrequest on the grounds that he didnot have a four-year degree.

Section 472.013(2)(a) providedthat an applicant was eligible to takethe licensure exam where he was agraduate of an approved course ofstudy in surveying and mapping and

had 4 or more years of specific ex-perience as a subordinate to a pro-fessional surveyor in the activepractice of surveying and mapping.The course of study must include aminimum of 32 semester hours ofstudy in the area of surveying andmapping. In contrast, Section472.013(2)(b) required that the appli-cant have a degree from a 4-yearcourse of study other than in survey-ing and mapping, together with 6years of experience. The Board ar-gued that Section 472.013(2)(a) wasambiguous as to whether the appli-cant must have a 4-year degree andthe interpretation of the provisionwas within the discretion of theagency.

On appeal, the court reversed. Itconcluded that the Legislatureclearly required a 4-year degree inSection 472.013(2)(b) and could havedone the same in subsection (2)(a). Itrejected the Board’s argument that a“course of study” at a university orcollege would necessarily result in a4-year degree.

Public RecordsDoe v. State of Florida, 30 Fla. L.Weekly 807 (Fla. 4th DCA, March 23,2005)

“John Doe” filed an emergency pe-tition for a writ of prohibition to pre-vent the State Attorney’s Office fromreleasing unredacted documents thatwould reveal his identity. He statedthat he had written to the StateAttorney’s Office alleging possible il-legal activity involving the Mayor ofLighthouse Point with respect to lo-cal building code violations. After theinvestigation was complete, the StateAttorney found no illegal activitieshad occurred, although building codeviolations did occur. The State Attor-ney then indicated that certain ma-terials would be made public sincethe investigation was finished.

The circuit court concluded thatsince there was no definition underSection 119.07(3)(c) of the PublicRecords Act of a “confidential source,”the agency could exercise its own dis-cretion in determining whether tokeep the source of the initial com-plaint confidential. The judge de-clined to disturb the State Attorney’sdecision with respect to confidential-ity.

On appeal, the district court re-

8

Administrative Law Section Newsletter Volume XXVI, No. 4 • June 2005

APPELLATE CASE NOTESfrom page 7

versed. It relied on two cases that itfound to be analogous, although nei-ther addressed the state PublicRecords Act. In State v. Natson, 661So. 2d 926 (Fla. 4th DCA 1995), thecourt had construed the provisions ofFlorida Rule of Criminal Procedure3.220(g)(2) regarding disclosure of theidentity of a confidential informantwho was not going to be called as awitness in a criminal proceeding. InDepartment of Justice v. Landano, 508U.S. 165 (1993), the United StatesSupreme Court construed the mean-ing of “confidential source” under thefederal Freedom of Information Act.Here, the district court concluded thatJohn Doe was justified in inferringthat his identity would be confidentialeven though the State Attorney neverexpressly guaranteed that confidenti-ality. The court noted that he had in-formed the State Attorney at everystep of the process that he requiredconfidentiality and was never toldthat it would not be assured.

Cubic Transportation Systems, Inc. v.Miami-Dade County, 30 Fla. L.

Weekly 921 (Fla. 3rd DCA, April 6,2005)

The case arose on an order of thetrial court compelling production ofdocuments. The appellant arguedthat the documents in question weretrade secrets and exempt from disclo-sure. The district court agreed withthe trial court that appellant hadfailed to take reasonable efforts toclaim a trade secret privilege. In thissituation, Cubic Transportation hadfailed to mark the documents as con-fidential and continued to supplythem for some time to the countywithout claiming a privilege.

Administrative JurisdictionMendez v. Department of Revenue, 30Fla. L. Weekly 741 (Fla. 2d DCA,March 16, 2005)

Mendez received a notice from theDepartment of Revenue to establishadministrative support for three mi-nor children. The notice specificallystated that neither the Departmentnor the Division of AdministrativeHearings had jurisdiction to estab-lish paternity in the administrativeproceeding and that a circuit courthearing would be provided if re-quested. Mendez returned the noticeand indicated that he wanted a cir-

cuit court hearing “for DNA testing”before agreeing to support pay-ments.

The Department subsequently is-sued a proposed administrative sup-port order which advised Mendez ofhis right to request an administrativehearing. After an administrativehearing, the administrative lawjudge ordered him to pay support forall three children.

On appeal, the court reversed. Itfound that Mendez was clearly chal-lenging paternity by requesting DNAtesting in his response to the initialorder. Since the Department had noauthority to make a determination ofpaternity, Mendez should have beenafforded a circuit court hearing forthat purpose.

Mary F. Smallwood is a partnerwith the firm of Ruden, McClosky,Smith, Schuster & Russell, P.A. in itsTallahassee office. She is Past Chairof the Administrative Law Sectionand a Past Chair of the Environmen-tal and Land Use Law Section of TheFlorida Bar. She practices in the ar-eas of environmental, land use, andadministrative law. Comments andquestions may be submitted toMary.Smallwood@Ruden.com.

CLE Audiotapes Available

Practice Before the Division of Administrative Hearings (5507R)$95 plus tax (section member)

$110 plus tax (non-section member)

2004 Pat Dore Administrative Law Conference (0147R)$100 plus tax (section member)

$115 plus tax (non-section member)

Practice Before the Division of Administrative Hearings (0222R)$105 plus tax (section member)

$120 plus tax (non-section member)

To place an audiotape order, call (850)561-5629.Additional information on Florida Bar CLE audio/videotapes is available at www.floridabar.org.

9

Administrative Law Section NewsletterVolume XXVI, No. 4 • June 2005

Agency SnapshotsAgency for Workforce Innovation

tive support purposes. Pursuant toChapter 443, Florida Statutes, theCommission, a quasi-judicial admin-istrative appellate body, is the high-est level of administrative review forcontested unemployment compensa-tion cases.

In addition to administeringworkforce and unemployment com-pensation (“UC”) programs, in 2001,the Legislature transferred theFlorida Partnership for School Readi-ness (FPSR or Partnership) and theresponsibility for administeringschool readiness programs to AWI.Established in section 411.01, FloridaStatutes, the mission of the Partner-ship is to ensure that all children areemotionally, physically, socially andintellectually ready to enter schooland ready to learn.

Effective January 2005, pursuantto House Bill 1A, the Florida Partner-ship for School Readiness was abol-ished. All powers, duties, functions,property and funds were transferredto the Agency for Workforce Innova-tion, Office of Early Learning. In ad-dition, the legislation tasked theAgency with the administrative andoperational requirements of the vol-untary pre-kindergarten (VPK) edu-cation program.

Agency Head’s name, title, ad-dress and telephone number

• Susan Pareigis, Director• Agency for Workforce Innovation

Office of Director107 East Madison St.Caldwell Building, MSC#100Tallahassee, FL 32399-4122(850) 245-7298

Whether the agency is a cabinetor gubernatorial agency

• AWI is a Governor Agency.

General Counsel’s name, addressand telephone number

• Gary Holland• Agency for Workforce Innovation

Office of General Counsel107 East Madison St.Caldwell Building, MSC#110Tallahassee, FL 32399-4122(850) 245-7150

The Florida Legislature createdthe Agency for Workforce Innovation(AWI) in 2000 as the state agency re-sponsible for ensuring that workforcefunds and programs are appropri-ately administered. Florida’s land-mark Workforce Innovation Act of2000 consolidated workforce pro-grams into a single point of policyaccountability at the state level (seesections 20.05 and 445.004, FloridaStatutes). In its support role, AWI isresponsible for ensuring thatworkforce funds and programs areappropriately administered. Whilethe Governor appoints AWI’s Execu-tive Director, the Agency operatesunder a performance-based contractwith Workforce Florida, Inc. (WFI).The Agency carries out its duties andresponsibilities through cooperativeagreements with each of the state’s24 Regional Workforce Boards(RWBs). The contracts are structuredto allow for local innovation and ser-vice delivery through the One StopCareer Centers, while ensuring thefederal funds that the RWBs receiveare spent appropriately and generatedesired results. Primarily, contractedservice providers selected by eachRegional Workforce Board now pro-vide workforce services in partner-ship with state employees, contractedemployees, and RWB employees.

The Workforce Innovation Act of2000 also transferred the Unemploy-ment Compensation Program fromthe former Department of Labor andEmployment Security to AWI. TheAgency is responsible for administer-ing the program (see Chapter 443,Florida Statutes), the purpose ofwhich is to provide temporary wagereplacement benefits to qualified in-dividuals who are unemployedthrough no fault of their own. TheWorkforce Innovation Act of 2000also directed the Agency to contractwith the Department of Revenue forunemployment tax collection ser-vices. In 2002, the UnemploymentAppeals Commission (UAC or Com-mission) was transferred to AWI fromthe former Department of Labor andEmployment Security. The Commis-sion is housed in AWI for administra-

Educational Background of Gen-eral Counsel

• Gary Holland attended theUnited States Military Academy atWest Point from 1968 through 1972where he received a Bachelor of Sci-ence degree, with a concentration inNational Security and Public Affairs.He graduated from Stetson Univer-sity College of Law, Magna CumLaude, in 1979. He received hisMaster’s degree equivalent (withhonors) at the U.S. Army Commandand General Staff College and hisLL.M. equivalent (with honors) at theJudge Advocate General’s School. Mr.Holland served 29 years on activeduty in the US Army before return-ing to Florida to begin his state em-ployment.

Agency Clerk’s name, telephone,physical location for filing, hoursof operation

• Veronica Moss; (850) 245-7150• The agency clerk is housed in

the Office of General Counsel. Hoursof operation are 8:00 a.m. until 4:30p.m.

Number of lawyers on staff• When fully staffed, AWI has 6

attorneys on staff.

Kinds of cases handled by theAgency; percentage that involvesuse of the APA

• As a pass-through agency forfederal grant monies, AWI is respon-sible for resolving a grant recipient’syear-end audit. This process may in-volve AWI disallowing grant moniesif it is determined that these fundswere not properly expended. In casesof such a disallowance, a grant recipi-ent has a right to challenge that de-termination at the Division of Ad-ministrative Hearings (“DOAH”).Other types of cases include Unem-ployment Compensation hearings,hearings at the Public Employee Re-lations Commission, Risk Manage-ment cases, Labor and Employmentarbitrations, federal bankruptcy andforeclosure cases and any resultingappeals.

Florida’s Workforce Services pro-continued...

10

Administrative Law Section Newsletter Volume XXVI, No. 4 • June 2005

AGENCY SNAPSHOTSfrom page 9

gram has been set up in a way thatAWI makes few agency decisions thatadversely affect a substantial inter-est. As such, AWI has a very smallpercentage of cases involving theAPA. However, this is likely to changewith the addition of the Early Learn-ing program to AWI.

How does Chapter 120 affect themission of the Agency?

• AWI’s mission is to “AdvanceEconomic Prosperity.” The Agency forWorkforce Innovation provides inno-vative and timely support services toFlorida’s Workforce and SchoolReadiness Systems to create a glo-bally competitive workforce and ad-vance Florida’s economic prosperity.

Chapter 120 has little effect upon themission of the agency.

• The Office for Early Learning,housing both the School Readinessand VPK programs, became a part ofAWL in January 2005. The missionof this program is to establish a uni-fied approach and specific strategiesfor systemic change – through localearly learning coalitions and inter-agency partnerships – to ensure thatall children are emotionally, physi-cally, socially and intellectually readyto enter school and ready to learn,fully recognizing the crucial role ofparents as their child’s first teacher.

How does the rulemaking pro-cess affect the Agency?

• AWU has promulgated workforcegrievance rules using the adoption offederal standards as authority. (Sees. 120.54(7)). AWI has longstandingUC rules and recently promulgated

Department of Community AffairsThe Department of Community

Affairs, headed by a Secretary who isappointed by the Governor, is prob-ably best known as the agency withprimary responsibility for state over-sight of growth management. Thispast hurricane season, the agency’srole in coordinating emergency re-sponse thrust DCA into the spotlightas the state responded to 4 majorhurricanes. The Department is alsonoted for its significant housing andcommunity development grant pro-grams. DCA is organized accordingthe following divisions: Division ofCommunity Planning, Housing &Community Development, andEmergency Management. In addi-tion, the Department supports theFlorida Communities Trust, theFlorida Building Commission, FrontPorch Florida, and a Special DistrictInformation Program.

Head of the Agency:Thaddeus L. Cohen, A.I.A., Secretary850-488-8466

School Readiness rules. The Agencyis now beginning to formulate rulesfor the VPK program.

What changes to the APA are de-sirable?

• Due to the privatization ofmany functions of the government toeither private non-profits or legisla-tively created corporations, boards,commissions etc., the definition of“agency” may need to be reviewed ifthe legislative intent is for the APAto apply to private entities carryingout governmental functions.

Tips for practice before theagency.

• Be aware of and familiar withthe relationships the agency has withthe various private organizationsthat partner in administering theworkforce programs and early learn-ing programs.

Agency Clerk:Paula Ford850-488-0410

Hours of Operation:M-F; 8:00 a.m. to 5:00 p.m.

Mailing Address:2555 Shumard Oaks BoulevardTallahassee, FL 32399-2100

General Counsel:Heidi Hughes850-488-0410

After graduating from Emory Uni-versity School of Law, Heidi Hughesentered private practice in Atlanta,concentrating in the area of commer-cial litigation. Since her arrival inFlorida about seven years ago, Heidihas served as an Assistant GeneralCounsel for the Agency for HealthCare Administration and for the De-

partment of State. Prior to beingnamed General Counsel for the De-partment of Community Affairs, sheserved as Deputy General Counsel toGovernor Jeb Bush.

Kinds of Cases: Most cases aregrowth management cases involvingchapters 163 and 380 and virtuallyall are subject to the APA.

Number of Lawyers on Staff: 12positions all located in Tallahassee.

Practice Tips: DCA programstaff and attorneys are always will-ing to discuss issues and potentialproblems to avoid litigation wherepossible. Their practice includesmeeting with prospective litigants inan effort to resolve matters.

Be aware that in the growth man-agement area, Chapter 120 proce-dures interface with unique proce-dures in chapters 163 and 380. So itis important to check all applicablechapters.

11

Administrative Law Section NewsletterVolume XXVI, No. 4 • June 2005

APPELLATE ATTORNEY’S FEESfrom page 1

Administration’s interpretation of astatute was so erroneous and illogi-cal that it was a gross abuse of agencydiscretion. Consequently, the courtawarded attorney’s fees to the appel-lant assisted living facility (“ALF”).Residential Plaza at Blue Lagoon,Inc. v. Agency for Health Care Admin-istration, 891 So. 2d 604 (Fla. 1stDCA 2005).

The facts leading up to AHCA’serroneous statutory interpretationare relevant to the attorney’s feeaward. Residential Plaza at BlueLagoon, Inc. (“RPBL”) holds a stan-dard ALF license, and also has anExtended Congregate Care (“ECC”)license. An ECC license allows anALF to maintain, in a residential en-vironment, residents whose mentalor physical conditions otherwise dis-qualify them from residing in an ALF.In June 2001, an AHCA survey re-sulted in two Class II deficiencies.The surveyor recommended no sanc-tions and shortly thereafter AHCAnoted by letter that RPBL correctedthe deficiencies. In September 2001,AHCA issued an ECC license toRPBL. In the following December,after another AHCA survey, AHCAsent a letter to RPBL stating that arecommendation for renewal of theECC license would be forwarded toTallahassee. The ECC license wouldbe due for renewal September 22,2003.

In August 2002, over a year afterAHCA identified and seemingly dis-posed of the Class II deficiencies,AHCA filed an administrative com-plaint seeking a $1,000 fine and a$500 survey fee as a sanction for thesame June 2001 Class II deficiencies.There was no hearing and RPBL paidthe fine and survey fee. Then, in July2003, AHCA sent notice to RPBL thatit proposed to deny the renewal ofRPBL’s ECC license based on AHCA’sconclusion that RPBL failed to meetlicensure standards because it hadbeen sanctioned for a Class II defi-ciency during the previous two years.

RPBL filed a detailed petition fora formal administrative hearing onthe denial. Attached to and incorpo-rated into the petition were various

documents from AHCA’s files thatchronicled the above chain of events.AHCA, however, denied the requestfor hearing and dismissed the peti-tion with prejudice. AHCA’s positionwas that denial of the ECC licensewas mandatory under Section400.407(3)(b)1, Florida Statutes.Therefore, AHCA concluded thatRPBL’s petition was incurably defec-tive.

On appeal, RPBL contended thatAHCA seriously misinterpreted thestatute, which provides, in part:

Existing facilities qualifying toprovide extended congregate careservices must have maintained astandard license and may not havebeen subject to administrativesanctions during the previous 2years, or since initial licensure ifthe facility has been licensed forless than 2 years, for any of the fol-lowing reasons:

a. A class I or class II violation.

On appeal, RPBL argued that thisso-called statutory “two year look-back” applied only to initial applica-tions for ECC licensure, but not re-newals. The two year look-back,RPBL asserted, is presented in thesection of Chapter 400 that dealswith initial ECC licensure. Renewalsof ECC licenses are covered else-where, in Section 400.417, FloridaStatutes. Nothing in Section 400.417discusses or alludes to the two yearlook-back in Section 400.407, FloridaStatutes. Further, the administrativerules promulgated pursuant to Chap-ter 400, Florida Statutes, make itclear that the two year look-back inSection 400.407 applies to those fa-cilities desiring to “establish” ECCservices rather than the renewal ofan ECC license. See Rules 58A- 5.014and 58A-5.015, Fla. Admin. Code.

The court agreed, correctly notingthat by statute ECC licenses are tobe renewed every two years; there-fore, under AHCA’s interpretation ofthe statute, any Class II violationwould automatically require renewalto be denied. The court found thatAHCA’s interpretation of the statutewas “illogical and patently inconsis-tent with other statutory provisionsthat specifically address license re-newals and sanctions for violations.”

891 So. 2d at 606.On the award of attorney’s fees,

the court noted that AHCA did notrespond to any of RPBL’s substantivearguments, but merely asked thecourt to remand the case to AHCA foran informal hearing. The court ob-served:

[T]his appeal should have neverensued. As a result of this appeal,the administrative process hasbeen delayed; monies, both publicand private, have been expended ina non-essential manner; and theresources of the judicial systemhave been taxed without purpose.Accordingly, and reiterating theconclusions we have reached in thebody of this opinion, we find thatthe action which precipitated thisappeal was a gross abuse of agencydiscretion.

891 So. 2d at 607.The finding of a “gross abuse of

discretion” in this case involvedsomething more than AHCA’s clearlyerroneous interpretation of the stat-ute. Other conduct by AHCA beforethe court included the following:

• The dismissal of RPBL’s petitionfor hearing, with prejudice; then,later, asserting that an informalhearing should have been convened;

• Failure to respond to any ofRPBL’s substantive arguments;

• The seemingly haphazard, in-consistent conduct relating to the de-ficiencies in question, chronicled inthe court’s opinion.

This case, therefore, presents yetanother example of what a reviewingcourt considers a “gross abuse of dis-cretion.” But also, for the administra-tive law practitioner, the criticalthing this case teaches is the impor-tance of the record on appeal. Factsare an essential ingredient to anyfinding of a “gross abuse of agencydiscretion.” A clearly erroneous read-ing of the statute, alone, does not ap-pear to be sufficient. See Ocampo v.Department of Health, 806 So. 2d 633(Fla. 1st DCA 2002)(agency statutoryinterpretation found to be clearly er-roneous without discussion of agencyabuse or attorney’s fees). In thepresent case, there was no eviden-tiary hearing and thus no hearingrecord. RPBL’s petition, however, waslengthy and detailed. Attached to it

continued...

The Florida Bar651 E. Jefferson St.Tallahassee, FL 32399-2300

PRSRT-STDU.S. POSTAGE

PAIDTALLAHASSEE, FL

Permit No. 43

were all documents that could be lo-cated to establish the chronology ofrelevant conduct by RPBL andAHCA. Because judicial review wassought on AHCA’s final order dis-missing RPBL’s petition for hearing,the facts alleged in the petition, in-cluding those incorporated by way ofattachments to the petition, weretaken as true. See, e.g., Sterman v.

APPELLATE ATTORNEY’S FEESfrom page 11

Florida State University, 414 So. 2d1102, 1103 (Fla. 1st DCA 1982).

Here, the allegations in the peti-tion and facts shown by the attacheddocuments provided a sufficient fac-tual record to assist the court notonly in ruling in favor of RPBL on theinterpretation of the statute, but alsoin finding that AHCA’s conduct wasa gross abuse of agency discretion.Without this factual record, a findingof a gross abuse of discretion wouldhave been more difficult to make. Thecourt may have been more inclinedto remand the matter for further pro-

ceedings to develop a record.

Paul H. Amundsen served as leadcounsel for the appellant in the abovecase. Paul practices administrativelaw at the Tallahassee firm ofAmundsen & Gilroy, P.A. Admittedto practice in 1978, Paul has repre-sented clients in numerous DOAHhearings and in appeals arising fromproceedings under Florida’s Admin-istrative Procedure Act, all in the pri-vate sector. Paul extends his thanksJohn F. Gilroy and Julia E. Smith fortheir collaboration.

Visit The Florida Bar’s website:www.floridabar.org