Administrative Procedure Act

A Pocket Guide to Florida's

Administrative Procedure Act

Table of Contents

What is the APA? ........................................................................................................................................1 Why does Florida need an APA? ..............................................................................................................1 What is an agency under the APA? ..........................................................................................................2 What is an agency action? ..........................................................................................................................2 What is a rule? ..............................................................................................................................................2 How does the rulemaking process work? ................................................................................................3 What is included in an FAR notice of rulemaking?............................. ..................................................4 What is legislative ratification?...................................................................................................................5 What is a statement of estimated regulatory costs? ................................................................................5 What is the role of the Administrative Code, Register and Laws Section?.........................................6 What is JAPC's role in the APA? ..............................................................................................................7 What types of problems does JAPC find? ...............................................................................................8 What is the role of the Division of Administrative Hearings? .............................................................9 What is unadopted agency policy? ..........................................................................................................10 Is licensing subject to the APA?..............................................................................................................10 What is a variance or waiver to the APA? ............................................................................................. 11 What is a petition to initiate rulemaking?............................................................................................... 11 What is a declaratory statement? .............................................................................................................12 Are exemptions to the APA permitted?.................................................................................................12 Where does a citizen go for help?...........................................................................................................13 Contact Information .................................................................................................................................14 The Administrative Procedure Act - Chapter 120, Florida Statutes..................................................15

While the Florida Legislature establishes public policy, the executive branch has the power to issue rules having the force and effect of law. Rules provide a way of informing the regulated public of how agencies intend to apply laws and deter the improper implementation of policies, thereby helping to protect the people of Florida from administrative agencies' noncompliance with legislative mandates or case-by-case decision making without regard to published policy. The average Florida citizen is as affected, if not more affected, by these agency rules than by court rulings, and administrative agencies regulate everything from healthcare facilities to local government expansion to electric utilities.

In Chapter 120, Florida Statutes, the Administrative Procedure Act outlines a comprehensive administrative process by which agencies exercise the authority granted by the Legislature while offering opportunities for citizen involvement. This process subjects state agencies to a uniform procedure in enacting rules and issuing orders and allows citizens to challenge an agency's decision. The Administrative Procedure Act serves to protect the citizens of Florida from thousands of unauthorized rules that would otherwise be in effect.

What is the APA? The Administrative Procedure Act (APA) is found in Chapter 120, Florida Statutes. Florida followed the example of the federal government and other states by adopting its first extensive APA in 1961 in an effort to provide comprehensive and standardized administrative procedures pertaining to executive branch agency actions. The Act provides a "check and balance" function by increasing administrative agency accountability to the Legislature and Florida's citizens. The modern version of Florida's APA was enacted in 1974 and has been amended almost every year since, while maintaining its basic components.

Why does Florida need an APA? Constitutionally, it is the role of the legislative branch to write the law and the role of the executive branch to carry out those laws. But at the time of the 1974 revisions to the APA, legislative members had become increasingly concerned that Florida was being run by a "phantom government," meaning that unelected bureaucrats were running the state through the use of largely unknown or inconsistently applied unauthorized rules or uncirculated memoranda hidden away in bureaucrats' desk drawers. Florida citizens found that they were subjected to rules that were not even written down, much less published. Legislators who worked for the defeat of a certain provision in the law often went home only to find the identical provision enacted as an administrative rule or agency memorandum a few months later. Furthermore, concerns arose about the impartiality of hearings conducted by agency employees when a citizen was accused of a rule violation. Legislators believed that a few agency administrators had in many ways usurped the authority of Florida's elected representatives, arguably giving these administrators more direct impact on the people of Florida than the officials these citizens had elected for representation.

The APA directed agencies to not only adopt in rule form its policy statements of general applicability but also issue final orders explaining its exercise of discretion, subject to judicial review. The Act also provided for citizen input, broadening the public's access to information regarding the activities of agencies. The new APA provided a means for the public to become involved in the rulemaking process and propose policy change as well as challenge agency decisions and rules before independent hearing officers and ultimately in the courts. It gave citizens the opportunity to obtain declaratory statements and to petition an agency to initiate rulemaking. The APA also established uniform procedures for issuing and suspending or revoking licenses. The procedural requirements of the APA serve to ensure that agencies adopt certain rules disclosing their methods of operation through following a model established by the Administration Commission.

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The Act also created the Joint Administrative Procedures Committee (JAPC) to provide for legislative oversight of agency actions. It became the responsibility of the committee to operate as "the eyes and ears" of the full Legislature and to ensure that the APA was operating as intended.

What is an agency under the APA? Each state department and each of its subunits is an agency. Regional planning agencies, local school boards, and entities specified in enumerated chapters of the Florida Statutes are also included in the definition of "agency," as are state commissions that exercise powers derived from statute. Counties and municipalities are not agencies for the purposes of the APA unless a law or existing judicial decision specifically makes them subject to it. The APA is not applicable to the Legislature or the courts.

State officers are included in the definition of an agency. This includes cabinet officers and the Lieutenant Governor, but does not include every state official who might technically be referred to as a state officer. The Governor is considered an "agency," but only when exercising non-constitutional powers.

What is an agency action? "Agency action" is broadly and flexibly defined to include a rule or its equivalent, an order or its equivalent, the denial of a petition to adopt a rule or to issue an order, and the denial of a request for the minimum public information required to be available by Chapter 120, F.S. Agency action in the form of an order does not have the effect of a rule and becomes final only after a hearing has been held or a hearing has been offered and waived by the affected person. Once final, agency actions are subject to judicial review.

Each agency must make all rules, orders, a subject-matter index of orders issued before July 1, 2015, and a list of orders not required to be indexed available for public inspection. Rules must be indexed within 90 days after filing, and orders must be electronically submitted to a centralized database within 90 days.

What is a rule? "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or agency statements describing the procedure or practice requirements of the agency. The effect of an agency statement, not the agency's characterization of its actions, determines if an agency statement is a rule. Certain agency statements, such as internal management memoranda not affecting private

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