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Administrative Law


Section


Newsletter 1
RECEIVED
Vol. XI, No. 1 William L. Hyde, John D. Newton II, Co-editors October 1993
,,II, I e. ) r:' Z I=


From the Chair


Carlton Fields Talianassee,
D_ Varn


by Stephen T. Maher


It is my great
4 privilege to serve
as chair of the Ad-
S' 9 ministrative Law
Section of The Flor-
ida Bar this bar
year. We have
planned an ambi-
tious schedule of
events, and hope that this great va-
riety of programs will both serve the
needs of our members and encour-
age others who are not currently sec-
tion members to join with us in
these programs and in section mem-
bership.
One of the strengths of our section
is the continuity in leadership pro-
vided by our officers and our sec-
tion's executive council. It has been
my pleasure to serve with past and
future section chairs, and to serve
as a member of the executive council
for a number of years. I look forward
to my year as chair with great an-
ticipation. Many of the section pro-
jects and programs that we will be
working on this year have a history
in the section and exemplify the con-
tinuity in leadership that we enjoy.
Some of our efforts will be new this
year. I will try to highlight these
projects and programs in this col-
umn as the year progresses.
Steve Pfeiffer, my predecessor as
chair, devoted much of his newslet-
ter columns to a discussion of sub-
stantive and procedural law. I will
also address developments in the
law this year, but I will also venture
into the area of bar politics, an area
in which Steve has announced that
he had little interest. My interest


in bar matters has been reflected in
my representation of our section on
the Council of Sections, and my elec-
tion as the founding Treasurer of the
Council of Sections this past June.
I believe that the relationship be-
tween the sections and the bar is
an important subject for discussion
because it is an evolving one. It is
important to pay attention to how
that relationship develops because,
as it changes, the bar and the sec-
tions may experience changes in
their relative responsibilities and fi-
nances.
The Council of Sections is still in
a formative stage. It just completed
final revisions to its proposed by-
laws at the September meeting.
Those proposed by-laws must now
be approved by the bar's Board of
Governors. The board may consider
them as soon as its September meet-
ing. I will keep you advised of devel-
opments involving the Council of
Sections as the year progresses.
We have planned a great variety
of section programs for this bar year.
Carol Forthman has succeeded Bill
Dorsey as the section's CLE commit-
tee chair. We thank Bill for his im-
portant contributions to many years
of successful section CLE program-
ming. Carol is the program chair for
the traditional Fall CLE program
"Practicing Before the Division of Ad-
ministrative Hearings," scheduled
for a live presentation in Tampa on
October 14, 1993 and for presenta-
tion in videotaped form on October
29, 1993 in Ft. Lauderdale and on
November 5, 1993 in Tallahassee.
The Patricia Ann Dore Ninth Ad-


ministrative Law Conference will be
held on September 30 and October
1, 1993 in Tallahassee at the Flor-
ida State Conference Center. The
Conference is again chaired by Bill
Williams, and this year it will fea-
ture a keynote address by Matt
Walsh, Editor of Florida Trend Maga-
zine, titled "Florida's Structural Defi-
cit-It Gets Worse." Professor Shep
Melnick, an Associate Professor of
Politics at Brandeis University, will
speak on Administrative Law and
Bureaucratic Reality. Steve Pfeiffer
will report on proposed revisions of
the Model Rules of Procedure. This
was Steve's major project last year
as section chair, and he is continu-
ing to lead efforts to revise the
Model Rules this year as well. Other
speakers include Carol Forthman,
who will speak on judicial review
and the administrative procedure
act, Carlos Alvarez, who will ad-
dress proposals for streamlining and
continued ...

INSIDE:
Public Utilities Law Committee Update
and Membership Drive .......... 2
Discovery in Administrative Proceedings:
Time for Reform ............ 4
Case Notes .................. 7
Special Section: ACCESS: Administrative
Case Compendium &
Electronic Search System ........ 9
M minutes .................. 16
Attorneys' Fees and Costs in Administrative
Proceedings ................. 17
Fall Fundraising for Pat Dore Endowed
Professorship Underway ......... 21
APA Task Force Convenes ......... 22
Final Statement of Operations ....... 23







Administrative Law Section Newsletter Vol. XV. No. 1


FROM THE CHAIR
from preceding page


reducing the financial costs and per-
sonal trauma of complex administra-
tive hearings, Betty Steffens, who
will speak on nonlawyer representa-
tion and pro se litigation under the
administrative procedure act, John
Radley, who will deliver an adminis-
trative law update, Bob Benton, who
will address attorneys' fees and
costs in administrative proceedings,
and Al Peacock and Paul Lambert,
who will discuss professional licen-
sure proceedings from investigation
through appeal. The luncheon
speaker will be Dr. David Kirby of
Florida State University.
The section is planning a joint
seminar with the Local Government
Law Section for January 28 in
Orlando. Kathy Castor will co-chair
that program for the section. Addi-
tionally, we will present our annual
"Administrative Law Overview"
program April 7 in Tallahassee.
As you probably already know,
the Public Utilities Committee has
merged with our section. They have
been doing CLE programs for years,
and they are planning to continue
that tradition as part of our section
later in this bar year.
I have a special interest in one of
our upcoming events, the Confer-
ence on the Florida Constitution, a
new event that is scheduled to be
held on April 22-23, 1994 in 'Tal-


lahassee. This event was described
in a short article that was included
in the last newsletter. I am chairing
this event and I am currently trying
to guide it through various levels of
bar approval. In a recent develop-
ment, the Council of Sections has
agreed to cosponsor this event. The
Budget Committee of the Board of
Governors now has this event on its
September agenda. I will provide
more information on this event as
it becomes available.
As many of you know, the Florida
House of Representatives Select Com-
mittee on Agency Rules & Adminis-
trative Procedures is considering
new legislation in the administra-
tive law area. I serve on a task force
that the committee has created to
provide input to the committee dur-
ing this process. While I am pleased
that people like me were asked to
serve in an advisory role, I have be-
come increasingly concerned about
the wide range of proposals for
change that have been floated to the
task force.
I do not think that significant
changes in the Florida Administra-
tive Procedure Act should be made
without greater study and reflection
than is possible in the present pro-
cess. I have suggested to the com-
mittee staff that another forum
might be more appropriate for such
far reaching reexamination of the
APA. I have proposed that the com-
mittee consider revitalizing the Law
Revision Council, used by Governor
Askew when he reformed the admin-


istrative process in the 1970s. As I
have related in one of my articles,
The Seventh Administrative Law
Conference Chairman's Introduction
to the Symposium Issue, 18 Fla. St.
U. L. Rev. 607, 610 (1991), the Law
Revision Council developed proposed
legislation for the Legislature in
many areas in the 1960s and 1970s.
They played an important role in
drafting a modern corporations act,
a wrongful death act, an evidence
code, a condominium act, a landlord
tenant act and the present adminis-
trative procedure act.
Revitalizing the council would not
be that difficult. The Florida Stat-
utes still authorize a Law Revision
Council (see Chapter 13, Part I).
There has been no council since the
1970s since one has not been funded
and no appointments have been
made to it. If committee believes
that significant changes are in or-
der, why not let the Law Revision
Council do a careful job of studying
the structure and consequences of
change. If we are not careful, we risk
adopting new procedures that may
sound good but that, in practice,
may create more difficulties than
they resolve.
Lastly, please review the article
in this issue regarding the section's
efforts to establish the Patricia Ann
Dore Endowed Professorship at Flor-
ida State University College of Law.
We have included a pledge card in
this issue for your convenience
should you or your firm wish to sup-
port this very worthy undertaking.


Public Utilities Law Committee

Update and Membership Drive

by Diane Kiesling


Since the last Administrative Law
Section Newsletter, the Public Utili-
ties Law Committee met on Septem-
ber 10, 1993, in Orlando. We final-
ized plans for one CLE luncheon and
initiated planning for our annual
CLE presentation in April, 1994.
The PULC is presenting a CLE
luncheon speaker on January 14,
1994, from 12:30 to 2:00 at the
Orlando Disney Hilton. The Commit-
tee's business meeting will be held
following the CLE from 2:30 to 3:30.


The topic of this one credit CLE will
be "Ethical Considerations in P.S.C.
Practice." The speaker will be Rob
VanDiver, General Counsel to the
Public Service Commission. A lim-
ited lunch menu will be available a
couple of weeks before the luncheon
so that attendees may select and
pay for their meal before the meet-
ing. The lunches will be available
for each person who pre-ordered one
at 12:30. The speaker will begin
promptly at 1:10 so that we can qual-


ify for an hour of CLE credit in
Ethics. For those attendees who do
not order their meal and pay their
admission prior to the day of presen-
tation, attendance for the speaker
must be paid for at the door by 1:00.
Further details will be available re-
garding the meal and admission
prices by November 1, 1993, and
those interested can contact our new
program administrator at the Bar,
Jackie Werndli at (904) 561-5623.
The Committee is planning its


C-


Administrative Law Section Newsletter


Vol. XV. No. 1







Vol. W No. 1 ~~Admnisn.tra~tive --~ Qa-f,ii- M-g~x~1g++r


Spring 1994 CLE presentation for
^. April 29, 1994, in Tallahassee, Flor-
ida. The format will be point/coun-
terpoint on five areas: Cogeneration
(Jim Stanfield v. Suzanne
Brownless); Incentives and Externali-
ties (Richard Donelan v. TBA);
Water and Wastewater (Wayne
Schiefelbein v. Public Counsel
representative); Telephone and Ca-
ble (TBA); and Status of the P.S.C.-
Elected or Appointed/Legislative, Ex-
ecutive, or Hybrid (TBA). Anyone
with suggestions or comments on
this program may contact Diane Ki-
esling, the Committee's CLE coordi-
nator for both CLE presentations
(904-488-9675).
Further, as a by-product of
PULC's merger into the Administra-
tive Law Section and the require-
ment for Committee members to be-
long to the Section, we no longer
have an accurate membership list.
Any member of the Section who is
interested in issues involving utility
law can become a Committee mem-
ber by so indicating in writing. It
needs to be in writing so that we can
^^ compile an accurate list of members,
addresses, telephone numbers, and
Fax numbers. Since our merger into


the Section, we have been unable to
communicate with our members
about meetings and activities, which
may explain the sudden drop in at-
tendance. The Committee needs you
and the benefits of Committee mem-
bership include networking, exchang-
ing ideas and information, and par-
ticipation in excellent educational
programs at a reduced rate. Please
send your written membership form
to Jackie Werndli at the Bar TO-
DAY.
The details of the PULC merger
with the Administrative Law Sec-
tion are still being finalized. An ad
hoc committee has been appointed
to draft Section By-laws changes
needed to effectuate the merger.
Those proposals will be presented to


the Executive Council for approval
at the Executive Council's next meet-
ing on November 19, 1993. In the
meantime, as you can see, the Com-
mittee continues to be active.
The Committeee's column in the
Newsletter (which you are reading
right now!) will keep the Section's
membership informed of the Com-
mittee's plans and activities. Future
columns will focus on the utility-
related activities and interests of
our members. Other contributions to
this column will be gratefully appre-
ciated.
Finally, send in your Committee
membership form TODAY!

Diane K. Kiesling,
Chair-Elect, PULC


mm- rnrn------------- r n- rn---------- ------ r------------^



Public Utilities Law Committee

The Public Utilities Law Committee of the Administrative Law Section is concerned with the legal,
technical and economic issues related to regulated utilities providing electric, gas, water, wastewater
and telephone services. If you are a member of the Administrative Law Section and would like to
become a member of this committee, please complete and return the form below:

I would like to become a member of the Public Utilities Law Committee.

Name Florida Bar Number
Address
S City/State/Zip
Telephone ( )FAX( )


Return to: Jackie Werndli, Program Administrator
The Florida Bar
F I 650 Apalachee Parkway
Tallahassee, FL 32399-2300
I .,


What happened to
my newsletter?
Your Administrative Law Sec- been redesigned. This new look
tion Newsletter has changed! In should allow for a little more vis-
order to conform to the standard ual interest and be easier to read.
format used by other Bar Section We hope you like the change!
newsletters, your newsletter has


Vol. XV, No. 1


Arlminialr~tivP T.~~xl Re~~;nn Nnr.r~l~~,~r







.vAdministrative Law Section newsletter V


Discovery in Administrative Proceedings:

Time for Reform
by Robert Lincoln, Senior Research Associate
FAU/FIU Joint Center for Environmental & Urban Problems Ft. Lauderdale, Fl
J.D. (high honors) 1993, Fla. State University College of Law


I. Introduction
The hearing process under
Chapter 120, the Administrative Pro-
cedures Act (APA), can turn policy
making or application into a drawn
out, expensive, and burdensome ex-
perience. This is particularly detri-
mental to individuals, small busi-
nesses and public interest groups
that are either affected by, or that
wish to affect, agency policy as it is
made through rules and orders.
Much of the burden of administra-
tive litigation can be tied to the dis-
covery process. This article exam-
ines the problems of the discovery
process currently employed in Flor-
ida under the APA. It also offers sug-
gestions for amendments to Rule 60-
Q, Florida Administrative Code, that
would bring the discovery process
closer to the intended purposes of
the APA.

II. Background
The Florida Statutes provide that
"[a]n agency .. or a hearing officer
has the power ... to effect discovery
on the written request of any party
by any means available to the courts
as in the manner provided in the
Florida Rules of Civil Proce-
dure. ."1 The Reporter's Com-
ments to the APA indicate that dis-
covery under the APA was intended
to permit, rather than require, the
full panoply of discovery techniques
available under the Rules of Civil
Procedure.2 This permissive ap-
proach, which suggests that a hear-
ing officer could make the full range
of discovery options available if ne-
cessary, but only if necessary, in a
particular case is consistent with the
expressed intent of the authors of
the APA to provide "opportunities
for flexibility and informality in Flor-
ida administrative processes."3
DOAH has taken the permissive
grant of authority provided by the
statute and made it mandatory.
Rule 60Q-2.019(1), Florida Adminis-


trative Code, provides that partiesis
may obtain discovery through the
means and in the manner provided
in Rules 1.280 through 1.400, Flor-
ida Rules of Civil Procedure." Under
this rule, hearing officers must give
parties full access to any discovery
procedure available in a civil trial;
the discretion to tailor discovery to
be appropriate to the needs of the
particular hearing involved has
been removed. Instead of the "flex-
ible and informal" process envi-
sioned by the authors of the APA,
discovery in administrative hearings
has become the formal, legalistic pro-
cess used in civil trials.

III. Problems with
Discovery under the Rules
of Civil Procedure
Formal discovery in administra-
tive proceedings presents three re-
lated (and, perhaps, obvious)
problems: delay, complication, and
expense. Each of these problems in-
creases the formality of the process,
decreases its availability to citizens,
small businesses and public interest
groups, and each is, therefore, in-
consistent with the intent of the
APA, as expressed in the DOAH
rules, to "promote the just, speedy
and inexpensive determination" of
cases.4
Discovery under the civil rules pre-
sents several sources of delay. While
responses to the various forms of dis-
covery interrogatoriess, requests for
production or admissions) can gen-
erally be had within 45 days, exten-
sions of time are common. Further-
more, if the responses are insuffi-
cient, multiple requests must be
made before a hearing officer can
sanction a party for failure to com-
ply. This creates an incentive to dis-
semble or prevaricate in any party
that would benefit from delay. Un-
der the rules, depositions of op-
posing parties, witnesses and ex-
perts may be taken without refer-


ence to the value of a deposition as
opposed to other means of getting
necessary information. Between in-
terrogatories, requests for admis-
sion, and depositions, the discovery
process can cause the hearing pro-
cess to drag out for months.5
The use of the civil discovery rules
also increases the complexity of ad-
ministrative litigation. The lan-
guage and process of discovery un-
der the civil rules is intricate enough
that persons who are not attorneys
can be expected to have difficulty in
properly framing requests, and even
experienced attorneys may find them-
selves spending unreasonable
amounts of time to draft "bullet-
proof" discovery requests. This gives
opposing attorneys room to avoid pro-
viding legitimate information. Cover-
sely, attorneys opposing a non-
represented party can file numerous
objectionable or improper requests
and rely on the ignorance of the
party to insulate them from sanc-
tions for such behavior.6 Further-
more, the process of compelling dis-
covery provides additional technical
requirements that add time and com-
plexity to the process.7 The com-
plexity of the process works a severe
disadvantage to non-attorney repre-
sentation of parties, including pro se
representation, and adds signifi-
cantly to the general hassle of ad-
ministrative litigation for all par-
ties.
Finally, discovery under the civil
rules adds greatly to the expense of
litigation, both financial and emo-
tional. First, the broad scope of per-
missible discovery means that par-
ticipation in an administrative hear-
ing may open a party up to
extensive inquiry into areas that are
almost wholly irrelevant, including
discovery whose true purpose is to
harass or intimidate. Answering
large numbers of complex interroga-
tories or retrieving and copying docu-
ments is expensive in time, ma-


--


Administrative Law Section Newsletter


Vol XVNo 1







Vol. XV No. 1 Administrative Law Section Newsletter


trials, costs and often in privacy.
Cs Depositions of witnesses, especially
experts, are expensive in travel
time, witness fees, attorney fees and
transcription costs. Finally, most liti-
gants will have to pay attorneys to
handle discovery because of the com-
plexity of the process. Taken to-
gether, these costs make adminis-
trative litigation as expensive, and
therefore unavailable, as civil litiga-
tion.
Under the current regime, then,
effective access to the administra-
tive process is effectively rationed to
those parties who can afford to fund
extensive efforts by attorneys. In
turn, the attorneys who are cur-
rently engaged in administrative
practice have a vested interest in run-
ning administrative litigation in ex-
actly the same fashion as civil trial
litigation is run: with expensive,
extensive, and often unnecessary dis-
covery; by obstructionist tactics de-
signed to draw out discovery and
deny information to the other side;
by turning administrative litigation
into a forum that is better suited to
Determining private rights rather
than public policy. None of these re-
sults is consistent with the intent
of the APA.

IV. Solutions
A) Defining the Boundaries
A clear understanding of the pur-
pose of administrative litigation is
necessary to any effective effort to
reshape discovery in those proceed-
ings. A vital distinction is that be-
tween penal actions and those that
involve permitting or rulemaking. Pe-
nal actions include license revoca-
tion and cases involving administra-
tive sanctions for violations of stat-
utes or regulations. Such actions are
more like traditional criminal liti-
gation in that the essential issue is
"who did what." In such actions-
especially because penalties are in-
volved-the additional protections
provided by traditional civil discov-
ery are probably worth the expense,
and perhaps necessary to ensure
that due process is provided.8
The purpose of rulemaking and per-
mitting hearings is to provide an in-
dependent check on 1) agency
factfinding and 2) agency interpreta-
tion of statutes and rules. Addition-
ally, these hearings serve the pur-


pose of forcing agencies to clearly ar-
ticulate the basis of their interpre-
tation. The "facts" involved are less
likely to turn on an objective "who
did what" than interpretations of
"what will happen if," that is, evalu-
ations of conditions and expecta-
tions. Even in permitting cases, the
"facts" that are likely to be in dis-
pute are expert opinions or interpre-
tations rather than "objective" facts.
Under such situations, the "conflict"
that is being resolved by the hear-
ing officer is different than in penal
cases; the issue is not so much "what
happened" as "whose interpretation
is more appropriate or justified."
The key difference between the pe-
nal cases and the policy cases is that
the objective facts are ultimately
less important. Traditional discov-
ery tools that are predicated on help-
ing parties become aware of the ob-
jective facts are less useful in hear-
ings under the APA than in civil liti-
gation because full disclosure of the
relevant facts is 1) required of the
agency under the Public Records stat-
utes and 2) in the best interest of a
permit applicant or a challenger to
a rule. The primary purpose of dis-
covery in APA hearings seems to
be the search for impeachment
material rather than the search for
"truth." Much discovery in these
cases involves the deposition of ex-
perts and agency staff in the hope
of getting statements that can be
used to undercut later testimony in
front of the hearing officer, rather
than to allow the parties to "under-
stand" the case. While some parties
may consider this valuable, the cost
is not worth the benefit when the
purpose of the hearing is considered:
allowing extensive discovery for
what amounts to a fishing expedi-
tion for inconsistent statements is
not necessary for either the function
of the hearing or its fairness.
A reform of administrative discov-
ery should therefore accomplish the
following:
1) Allow full civil discovery in "pe-
nal" cases such as professional
discipline and enforcement ac-
tions;
2) Provide for disclosure of rele-
vant "objective"facts in permit-
ting and rule-making cases
without allowing overbroad in-
quiries or evasive responses;


and
3) Provide sufficient information
about the testimony of oppos-
ing witnesses to allow effective
cross examination, without al-
lowing unnecessary deposi-
tions.

B) Suggested Reform.
One simple way to reform discov-
ery would be to amend the DOAH
rules governing discovery to provide
for a comprehensive discovery order
and appropriate changes to the meth-
ods for compelling discovery. The par-
ties would suggest the scope and na-
ture of the information necessary for
the conduct of the hearing and the
hearing officer would direct the par-
ties to prepare the appropriate
requests interrogatoriess for identifi-
cation of witnesses and facts, re-
quests for production for documents,
etc) which the hearing officer would
then enter and send to the parties.
The parties would then respond.
Where depositions are requested,
the order would contain limits on
the scope and nature of the deposi-
tion and perhaps even the schedule.
The primary difference from current
practice would be that the parties
would have to justify their requests
before they were made and that the
discovery request would be an order
of the hearing officer. However, this
reform would likely have a great ef-
fect on the behavior of the parties
during discovery.
First, the reform would change
the motion to compel discovery into
a motion to compel compliance with
the hearing officer's order. Because
failure to comply with a reasonable
order is a ground for sanctions un-
der the APA,9 parties would be far
more hesitant to give insufficient,
evasive or incomplete responses or
to manufacture perceived ambigui-
ties to try to justify such responses.
In effect, the threat of sanctions for
failure to comply with the order
would require parties to make a
good faith effort to comply the first
time. This would also make it more
likely that updates to the informa-
tion would be made on a timely and
reasonable manner-requests for ex-
tensions would have to be justified
to the hearing officer, rather than
another attorney.
Furthermore, because the scope of
continued...


Vol. XV, No. 1


Administrative Law Section Newsletter






Administrative Law Section Newsletter


DISCOVERY
from preceding page



a request would have to be justified
to the hearing officer, parties would
be less likely to use discovery as an
offensive weapon. The scope of re-
quests would probably be more rea-
sonable and parties would have an
incentive to "front load" their re-
quests at the early stages of the pro-
cess, rather than strategically tim-
ing their requests to impose the
greatest inconvenience to the oppos-
ing side. In short, the parties would
behave more reasonably in both mak-
ing requests and responses.
The result could be a significant
decrease in the overall time and ex-
pense involved in the hearing pro-
cess. Additionally, this procedure
would aid non-lawyer representa-
tives and pro-se litigants signifi-
cantly in navigating the process.
This reform also would allow the
hearing officer to tailor the process
to the needs of the particular hear-
ing, including, in appropriate cases,
turning discovery over to the parties
under the civil rules as is current
practice.
Three problems might limit the ef-
fectiveness of this reform. First, it
might place unreasonable demands
on the hearing officers. It might be
that the time it would take to sort
out discovery ahead of time would
be greater than the time currently
needed to oversee discovery dis-
putes; this would increase the bur-
den on the hearing officers. Given
the pervasive problems that seem to
occur in discovery, however, this re-


sult seems unlikely. Second, the hear-
ing officers might not use their
oversight to limit the realm of dis-
covery, but simply "rubber stamp"
all requests; this would effectively
nullify the reform. This result may
be more likely because many of the
hearing officers are former trial at-
torneys and may be more sympa-
thetic to the mores of the attorneys
than the public policy issues in-
volved. Finally, the "discovery order"
approach might be insufficient to
limit the number of depositions or
their length; the reasonableness and
utility of a given deposition would
be hard to police once the deposition
was permitted.


V. Conclusion
The unbridled use of civil discov-
ery in administrative hearings pro-
duces results that are inconsistent
with the intent of the APA. The cur-
rent DOAH rules that permit and
indeed require the use of the full pan-
oply of civil discovery techniques cre-
ates unnecessary cost, complexity
and delay in the administrative pro-
cess and should not be tolerated
outside the realm of penal actions.
To a policy-minded observer, the cur-
rent system of discovery signifi-
cantly interferes with the purposes
of the APA by making administra-
tive processes so expensive and com-
plicated that effective participation
by individual citizens and public in-
terest groups is limited. The result
is that wealthy individuals, com-
panies or lobbying groups can work
through well connected and experi-
enced attorneys to dominate the ad-
ministrative process.


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

Stephen T. Maher, Coral Gables . . . . . Chair
Vivian F. Garfein, Tallahassee ...... . .................. Chair-elect
Linda M. Rigot, Tallahassee . . . . Secretary
William E. Williams, Tallahassee ..... . . . Treasurer
William L. Hyde, Tallahassee . . .................. Co-editor
John D. Newton II, Tallahassee .... .................... Co-editor
Jackie Werndli, Tallahassee .. .............. Program Administrator
Lynn M. Brady, Tallahassee .... ...... . . . Layout

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


DOAH should reform discovery in
nori-penal cases by providing that ,
the hearing officer should enter a
comprehensive discovery order after
motions from the parties. Reforming
discovery may be one step in creat-
ing a more democratic state and im-
plementing the intent of the APA to
provide speedy, just, and inexpen-
sive determinations of administra-
tive issues.

Endnotes:
1 Fla. Stat. 120.58(1)(b) (1991).
2 "A general grant of powers is made for
the conduct of administrative proceedings,
rather than authorizing full discovery and the
other formalities of the Florida rules of civil
procedure." 3 Florida Admin. Practice, Re-
porter's Comments 21 (emphasis added).
3 Id. at 3.
4 Rule 60Q-2.024, Fla Admin. Code.
5 Nowhere is the problem more severe
than in rule challenge proceedings. The re-
quirement of 120.54(4) (c), Florida Statutes
(1991), that rule challenge hearings be held
within 30 days is constantly, if not
universally, ignored in order to provide time
for discovery. This practice gives challengers
unwarranted leverage to bargain with agen-
cies to modify rules by allowing any case that
can survive a motion to dismiss to drag out
for months. It is also particularly useless in
rule challenge cases, wherein the agency need
only demonstrate that the rule is minimally
rational and that all the information brought
forward to the agency has been considered.
6 This is particularly true of requests for
admission, where an uncomprehending party
may find that they have lost the case for fail-
ure to understand the nature of the discovery
request.
7 The DOAH rules complicate this further
by requiring a motion to compel to include
each original request, the opposing party's re-
sponse and the reasons the response is inade-
quate. In a case with extensive interrogato-
ries, admissions, or requests for production,
this puts a clear advantage in the hands of a
party with deep pockets or lots of time.
8 While due process in administrative hear-
ings generally requires only that the parties
receive adequate notice and an opportunity
to be heard in a "fair hearing" before an im-
partial tribunal, see, e.g. Canney v. Board of
Public Instruction, 278 So. 2d. 260 (Fla. 1973)
262-63, the types of procedural safeguards re-
quired at any given hearing varies with the
character of the hearing. Hadley v. Dep't. of
Administration, 411 So. 2d 184, 187 (Fla.
1982). When hearings involve penal issues,
such as fines or the revocation of a license,
the courts are apt to require greater protec-
tions. See generally, Buchman v. State
Board of Accountancy, 300 So. 2d 671 (Fla.
1974), State ex rel Vining v. Fla. Real Estate
Commission, 281 So. 2d 487 (Fla. 1973) (hold-
ing that due process in penal administrative
hearings includes a right to remain silent).
9 Fla. Stat. 120.65 (10).


I


Vol. XV, No. 1






Vol. XV, No. 1


Case Notes
September 28, 1993
by John Radey and
Elizabeth McArthur
A divided Florida Supreme Court
says that the Department of Com-
munity Affairs, not the applicant,
has the burden of proof in some 120
cases. In Young v. Department of
Community Affairs, 18 FLW S476
(Fla., September 9, 1993), the 3d
DCA had held that in an appeal by
the Department pursuant to section
380.07, Florida Statutes, of a county
order issuing a land clearing permit
within an area of critical state con-
cern, the burden of persuasion and
burden of going forward rested on
the permit applicant. The Supreme
Court quashed the 3d DCA's deci-
sion, holding that the burden of
proof and burden of going forward
was on the Department. The Court
determined that section 380.07 re-
quires a de novo hearing under Ch.
120, despite use of the word "ap-
r peal", and then applied the general
rule that the burden of proof in de
novo administrative hearings is on
the party asserting the affirmative
of the issue. The hearing officer had
determined that the affirmative of
the issue was being asserted by the
permit applicant, relying on the
JWC case. However, the Court dis-
tinguished cases like JWC, involv-
ing challenges to proposed agency
action. In this case, Monroe County
was not a state agency. Thus, its per-
mit decisions were not proposed
agency action. Monroe County en-
tered a valid order, the effectiveness
of which was stayed by the Depart-
ment's appeal under section 380.07.
The Department was therefore the
party asserting the affirmative that
the permit orders were not in accor-
dance with Ch. 380 (an affirmative
not).
Justice Barkett wrote a special con-
curring opinion, joined in by Justices
Kogan and Shaw. Justice Barkett dis-
agreed that the reference to Chapter
120 in section 380.07 necessarily re-
j quires de novo hearings simply
because Florida cases have gener-
ally interpreted section 120.57 as
requiring a de novo hearing. In-
stead, her opinion was that Ch. 120


proceedings per section 380.07 are
different, not de novo. The language
used in the statute is language of
the traditional appellate process.
She concluded that by use of the
word "appeal", the legislature indi-
cated that the appellant has the
ultimate burden of persuasion with
local government's decision being en-
titled to a presumption of validity.
She concluded that the reference to
Ch. 120 means that the hearing
should encompass more than just re-
cord below; new evidence can be
presented (new, but not de novo). Jus-
tice McDonald dissented, and would
approve the holding that the burden
of going forward and the burden of
persuasion always rests upon the ap-
plicant through all hearings.
But the Supreme Court seemed
more together in Department of Pro-
fessional Regulation, Board of Ac-
countancy v. Rampell, 18 FLW S374
(Fla., July 1, 1993), where it de-
clared invalid statutes and rules
prohibiting CPAs from personally so-
liciting clients and from making
competitive bids for professional en-
gagements as unconstitutional
restrictions of protected commercial
speech. As to soliciting clients, the
Florida Supreme Court followed the
recent U.S. Supreme Court opinion
in Edenfield v. Fane, 113 S.Ct. 1792,
123 L.Ed.2d 543 (1993), which held
that the Florida DPR rule prohibit-
ing solicitation was an unconstitu-
tional infringement on the right of
free speech. As to the competitive
bidding prohibition, the Court like-
wise determined that the statutory
and rule regulation could not with-
stand constitutional scrutiny, be-
cause it did not directly advance a
substantial governmental interest.
More food for thought in the De-
partment of Community Affairs is
found in Killearn Properties, Inc. v.
Department of Community Affairs,
18 FLW D1837 (Fla. 1st DCA,
August 16, 1993) where a Depart-
ment DRI final order was reversed
in part and affirmed in part. One
issue was whether a one-page De-
velopment Order ("DO"), approving
an Application for Development Ap-
proval ("ADA") "as stated" in the
ADA could be construed as imposing


a ten-year buildout deadline based
on the ADA's estimation that devel-
opment would conclude in 10 years.
The court held that such a require-
ment, with a heavy price to pay for
noncompliance, could not be implied
from estimates in the ADA. On a
separate issue, the court affirmed
the Department's order finding that
the DO required development
within the DRI to be contemporan-
eously connected with a central sew-
age system. However, as to two
purchasers of property within the
DRI, the court held that the Depart-
ment was stopped from enforcing
the DO. A key fact in the court's es-
toppel holding was that the DO was
never recorded in public records.
Following a formal administrative
hearing under section 120.57(1), and
issuance of a recommended order,
what effect does a voluntary dis- "
missal by the petitioner have? That
may depend on the status of the pe-
titioner and/or which appellate court
answers the question. In Saddle-
brook Resorts, Inc. v. Wiregrass
Ranch, Inc., and Southwest Florida
Water Management District, 18 FLW
D1590 (Fla. 2d DCA, July 9, 1993),
the court in a split decision held that
after issuance of a recommended or-
der, a voluntary dismissal by the
third party who initiated 120.57(1)
proceedings to challenge prelimi-
nary agency action granting a
permit did not deprive the agency
of jurisdiction to proceed with a fi-
nal order based on the recommended
order. The court relied in part on a
rule of the SWFWMD providing that
parties with a right to a formal ad-
ministrative hearing could waive
that right and request an informal
hearing, which the agency could
grant at its option. The court with-
out discussion equated waiver of the
right to a formal hearing by request-
ing an informal hearing under the
agency's rule with filing a notice of
voluntary dismissal. Thus, the court
concluded that, at least where the
dismissing party was not the appli-
cant itself, the agency had the option
under its rule to continue with the
formal hearing process by proceed-
ing to enter a final order based on
the recommended order. The major-
continued ...


Administrative Law Section Newsletter







Administrative Law cottonn Newsletter Vol XV No


ity disagreed with the contrary
holding of the First DCA in John A.
McCoy Florida SNF Trust v. Depart-
ment of Health and Rehabilitative
Services, 589 So.2d 351 (Fla. 1st
DCA 1991). The dissenting opinion
by Judge Parker would follow the
McCoy precedent absent an agency
rule prohibiting voluntary dismiss-
als or where there is an agency rule
like Rule 1,420 of the Florida Rules
of Civil Procedure, requiring a mo-
tion for dismissal which can be
denied.
A second procedural decision fa-
voring the agency position is found
in Environmental Resource Associ-
ates of Florida, Inc. v. State of
Florida, Department of General Serv-
ices, 18 FLW D1975 (Fla. 1st DCA,
September 3, 1993). Judge Barfield
wrote the majority opinion, uphold-
ing DOl' denial of an administrative
hearing where the request for hear-
ing was mailed the day before the
21-day clear point of entry was up,
but was not received by DOS until
4 days after the clear point of entry
deadline, The clear point of entry no-
tice was provided, and clearly
required that a request for hearing
be "filed" within 21 days. Judge
Barfield's opinion rejected the argu-
ments that preparat ion and mailing
of the petition within the 21-day pe-
riod was sufficient to show intent
not to waive the right to a hearing,
and that equitable tolling should ap-
ply to deem the request timely filed.
Judge Barfield noted that to trigger
equitable tolling, there must be
more than just a failure to timely
meet a filing deadline; the equitable
doctrine would apply only if the pe-
titioner was misled or lulled into
action or in some extraordinary way
had been prevented from asserting
his rights, or had timely asserted
them in the wrong forum, Judge
Ervin concurred with Judge
Barfield, but stated his view that
the case was a straightforward clear
point of entry case. A clear point of
entry was given and appellant failed
to take the opportunity, resulting in
waiver of the right to hearing. Judge
Zehmer dissented, stating his view
that the failure to request a hearing
within 21 days should only create a
rebuttable presumption of waiver,
and the facts of this case should be
sufficient to rebut presumption of


waiver and to apply equitable toll-
ing, He asserted a direct conflict
between the majority decision and
Stewart v. Department of Correc-
tions, 561 So.2d 15 (Fla. 4th DCA
1990), where a filing that was late
by one day was accepted. There, one
day late. Here, four days late. Judge
Zehmer argued that Chapter 120
should allow for flexibility to accom-
modate a minor infraction of proce-
dural rules to avoid the ultimate
penalty of losing one's rights.
The agency did not prevail when
it rejected a license applicant's self-
serving testimony. In Martuccio v.
Department of Professional Respon-
sibility, Board of Optometry, 18 FLW
D1788 (Fla. 1st DCA, August 12,
1993), the court reversed the Board
of Optometry's final order denying
an application for licensure as a Flor-
ida optometrist. At issue in the
formal administrative hearing was
the applicant's scoring on the clini-
eal portion of the exam, where two
examiners differed in their scores.
The applicant himself, licensed in
two other states, testified and quali-
fied as an expert in optometry. His
testimony was relied on by the hear-
ing officer in finding that one of the
examiners inappropriately scored
the applicant. The Board reversed
the findings, concluding that the ap-
plicant's testimony could not be
relied on as competent substantial
evidence because it was self-serving
and was controverted by the examin-
ers' scoring (neither examiner testi-
fied at the hearing). The court
confirmed the general principle that
it is for the hearing officer to judge
credibility of witnesses, then went
on to say that "[w]e choose not to
discard these fundamental princi-
ples of administrative law simply
because the hearing officer has
judged the credibility of fact and opin-
ion testimony presented by the
applicant, who has himself qualified
as an expert witness." The court
cited to the Florida Evidence Code
and commentary noting that per-
sons having a pecuniary or proprie-
tary interest in the outcome of a
case are not disqualified as wit-
nesses; instead, their interest
merely goes to credibility, The court
also noted that the applicant's lack
of licensure in Florida did not pre-
clude qualification as an expert


witness, if qualifications were other-
wise established as they were. Thus
the court concluded that the hearing
officer was within her prerogative in
relying on the applicant's testimony
as competent substantial evidence;
the Board, on the other hand, ex-
ceeded its authority by rejecting
findings supported by competent sub-
stantial evidence.
When a statute provides that an
agency shall adopt criteria, but no
deadline for adoption is imposed,
might 20 years be too long? Maybe
so. In Concerned Citizens of Putnam
County for Responsive Government,
Inc. v. St. Johns River Water Man-
agement District, 18 FLW D1643
(Fla. 5th DCA, July 23, 1993), the
court reversed the trial court's dis-
missal of Concerned Citizens' com-
plaint for injunctive relief to require
the water management district to
act on a legislative mandate, hold-
ing that the complaint stated a
cause of action. The legislation at
issue was the 1972 adoption of sec-
tion 373,042, providing that water
management districts shall estab-
lish minimum water flows and
minimum water levels for various
areas within the district. It was un-
disputed that with 2 exceptions, the
St. Johns District had not set mini-
mum flows and levels. The court
rejected the District argument that
the statutory "shall" was directory,
not mandatory, since no deadline
was set, Instead, the court inter-
preted the lack of a deadline to
mean that the District was to act
within reasonable time. The court
also rejected the District's argument
that the court could not interfere
with a district's administration ab-
sent a patent violation of law or a
palpable abuse of authority. The
court distinguished cases relied on
by the District as all involving ac-
tions at least facially within the
discretion of governmental agencies,
whereas this case does not involve
discretionary action. In reversing
the dismissal and remanding for
trial, the court noted that Concerned
Citizens should have opportunity to
present its case, and "while i iis dif-
ficult for a layperson to imagine how (
the water supply can be managed I
without the establishment of mini-
mums, the District should have the
opportunity to answer."


Administrative Law Bootion Newsletter


Vol XVNo I







Vol. XV No,. 1S


ACCESS: Administrative Case Compendium

& Electronic Search System

by William L. Hyde
Earl, Blank, Kavanaugh & Stotts, P.A.
Tallahassee, Florida


For several years now, the Divi-
sion of Administrative Hearings and
Sharyn Smith, Division Director,
have been engaged in an herculean
effort to compile hard copies of ad-
ministrative recommended orders, fi-
nal orders, and where appropriate,
appellate court decisions on appeals
of those administrative orders and
then convert those hard copies to an
electronic data base, working back-
ward in time. They have now
scanned in or keyed in (where the
copies were bad) all available admin-
istrative orders and most related ap-
pellate opinions through 1985. It is
hoped that the orders and opinions
from the first decade of DOAH's ex-
istence (1974-1984) can ultimately
be included in this electronic data
base; however, that will be a consid-
erably more difficult task, as all of
those administrative orders will
have to be manually keyed into the
system, and additional funding will
be required. New orders and court
opinions are scanned in daily.
What DOAH has now, however,
is full text retrieval on approxi-
mately 8,000 orders, give or take a
few. Over the years, unfortunately,
some orders have been lost or can-
not otherwise be located (e.g., the
recommended order in the seminal
case of McDonald v. Dep't of Bank-
ing & Finance, 346 So. 2d 569 (Fla.
1st DCA 1977)), but most of DOAH's
orders at least back through 1985
have now been converted to the elec-
tronic data base. There are also data
bases for the Comptroller/Depart-
ment of Banking & Finance (bank
applications), Governor's Office (e.g.,
Land and Water Adjudicatory Com-
mission), and Department of Com-
munity Affairs (binding letters).
The significance of this effort
should be manifest to anyone with
more than a passing knowledge of
Westlaw or other computer-based
electronic retrieval systems. Now,
by using a computer available at


DOAH's headquarters in Tallahas-
see, an administrative law practitio-
ner can conduct electronic searches
for important or relevant adminis-
trative law decisions by DOAH case
number, DCA number, agency case
number, and/or Southern 2nd cita-
tion. Where such facts are not
known, one can search by identify-
ing the name of the petitioner, re-
spondent, and even intervenor.
Cited statutes or rule numbers are
likewise a search tool, as are recom-
mended order dates, final order
dates, DCA opinion dates, agency at
issue, case suffix, and even hearing
officer. Once the order is found, more-
over, all of the above information is
included, as is a full text of the rec-
ommended order, the final order (if
it differs from or modifies the recom-
mended order) and, where appropri-
ate, the appellate opinion. Word
search is not yet available.
Currently, this public access to
this system is only available at
DOAH's headquarters. Additional ac-
cess will soon be provided through
a UNIX system for easier outside ac-
cess, and DOAH has recently en-
tered into a contract with Darby Pub-


i lishing Company to publish the data
base on CD ROM with monthly or
bi-monthly updates.
The system can be used at DOAH
simply by making appropriate ar-
rangements with Ann Cole at 904-
488-9675 in the DOAH clerk's office.
Hard copies are available at the cost
of 25 cents per page, which is a rela-
tive bargain.
First-time users can get a crash
course at DOAH for use on the sys-
tem, but to further that process we
have included here DOAH's manual
for utilizing ACCESS. What follows
is a representative example of a bid
dispute, DOAH Case No. 92-
001779BID, decided by Hearing Of-
ficer William J. Kendrick. Where in-
formation has been left blank (e.g.,
rule number), that means there is
no appropriate reference therefore
on the text. The first two lines of the
text, which represents a summary
of the holding, is included at the bot-
tom of this example. From that point
on, one need only press a key to ex-
amine the text of the orderss.
Following the representative ex-
ample are the basic rules of thumb
for utilizing ACCESS, steps to
continued .


ADS 5.1.3 (CTOS) You have mail. *
Next or Prey Page keys to view cardslGO to retrieve orderIFINISH to exit.

------- ---------------- ACCESS INDEX LIST -----------------------------
DOAH CASE#: 92-001779 BID HEARING OFFICER: KENDRICK
Bid Case WILLIAM J. KENDRICK
PETITIONER: TOXICOLOGY TESTING SERVICE INC
RESPONDENT: DEPT OF CORRECTIONS
INTERVENOR:
AGENCY: COR/ D f voj' ions
AGENCY CASE#: CR DOAH RO: 05/20/92
DOAH CNSL CASE#: DOAH FO:
DOAH RO/FO CORR/MISC:
STATUTES: 2e(1 )
: AGY FO ISSUED: 06/02/92
AGY FO FILED: 06/03/92
AGY FO CORR/AMEND FILED:
AGY REMAND FILED:
AGY ACTION: AP
ADOPTED IN PART OR MODIFIED
RULE NUMBER: DCA#:
DCA OPINION FILED:
DCA REMAND ISSUED:
So.2d CITE:
I---------------------------------------+
Formula in published RFP contained error that agency corrected when it asse
ssed bids. Agency action found not improper where bidder not rely on formula
.-----------------------------------------.------------------------------4


Administrative Law Section Newsletter


SPECIAL SECTION


Vol. XVNo. 1






Administrative Law Section Newsletter SPECIAL SECTION Vol. XV, No. 1


search by, additional information, reports, luck (and legislative funding),
standard typing instructions, agency/ Going to DOAH may constitute greater and far easier public access
division search codes, case suffix something of a temporary inconven- such as through computer modems
cross-reference code reports, and ience to those wishing to use AC- will eventually be available simply
hearing officer cross-reference code CESS. However, with a little bit of by telephoning DOAH.


BASIC RULES OF THUMB

* READ THE PROMPTS AT THE TOP OF THE
SCREEN FOR GUIDANCE!
* Pressing [HELP] will either display a window list of
possible entries or it will display a window with in-
structions.
* To activate or select a function from a list or menu
press [GO].
* To discontinue a function or clear it off the screen
press [FINISH].
* The arrow keys and the [RETURN] key may be used
to navigate between fields and on menus.
* Functions keys ([Fl], [F2]..., [F10]) are used to make
selections from the main menu; and, when a function
strip is displayed on the screen, the function keys
will initiate the process indicated on the strip.
* To clear an entry for one field, hold down the [CODE]
key and press the [DELETE] key.
* All dates must be entered in the format MM/DD/YY.
For example: 12/31/89.
* All case numbers must be entered in the format YY-
NNNNNN. For example: 89-002134.
* Refer to the Appendix of this book for listings of Hear-
ings Officer codes, Case Suffix Codes, Agency/
Division Codes and standard types of entries used for
ACCESS database information.
* Document printouts include all historical case docu-
mentation that has been filed with the Division of
Administrative Hearings. A document may consist of
a recommended order, a final order, a corrected/
remanded order, a DCA opinion and/or a DCA Cor-
rected/Remanded Opinion.


STEPS TO SEARCH BY...

1) Select the desired agency from the ACCESS main
menu by pressing the corresponding function key.
For example, to search recommended and agency
final orders filed with the Division of Administra-
tive Hearings ... press [F4]. Documents unique to
a specific agency may be accessed by selecting that
agency name from this menu. For example, Bank-
ing & Finance Orders of General Application or De-
claratory Statements may be accessed by pressing
IF5-Office of the Comptroller.
2) When the search screen displays, a function strip
will also display providing five options. To start en-
tering your search criteria press the function key
corresponding to the desired search option.
[Fl] CLEAR SCREEN
Clears the screen of any data which you may have
entered in a previous search.


[F5] BY ANY CASE#
Allows the entry of the DOAH Case Number,
Agency Case Number, DCA Case Number or South-
ern Second Cite Number for direct document iden-
tification and retrieval. Utilizing this option will
start the cursor in the DOAH case number field;
but, the other fields may be accessed for entry by
pressing the Up Arrow, Down Arrow or the [RE-
TURN] key.
[F6] BY NAME
Allows the entry of the Petitioner Name, Respon-
dent Name, Intervenor Name, Hearing Officer
Name and/or Agency Name for document identifica-
tion and retrieval. Utilizing this option will start the
cursor in the Petitioner Name Field; but, the other
fields may be accessed for entry by pressing the Up
Arrow, Down Arrow or the [RETURN] key. The
short field next to the long field for Petitioner, Re-
spondent and Intervenor is utilized for proper last
names only. Please refer to page 4 "Searching for
Proper Names. ." for instructions on how this field
is best utilized. Company and Agency Names must
be entered in the Long Field ONLY.
[F7] BY OTHER
Allows the entry of all criteria listed on the screen
(except case numbers) for document retrieval. Utiliz-
ing this option will start the cursor in the first Stat-
ute field; but, the other fields may be accessed by
pressing the Up Arrow, Down Arrow or the [RE-
TURN] key.
[F8] QUICK VW BY
Requires the entry of the DOAH Case Number
ONLY. This is the fastest means of accessing docu-
ments.
3) After pressing the desired function key, the system
will highlight the first field ready for information.
Fill out any of the fields pertinent to the selected
search option. When all the desired criteria has been
entered, press [GO].
NOTE: Entries in multiple fields will produce more
exclusive search results. For example, if the hearing
officer name as well as the RO date is entered, the
system will only return information which meets both
name and the date entries.
4) If you had previously selected the "Quick View By
#" or [F8] the system will immediately display the
document. Otherwise, the system will display a func-
tion strip with additional options. At this point you
may, press "Confrm Search" or [F8] to activate the
search process or [Fl] to clear the search criteria
and start over again.
5) The system will respond with a prompt at the top
of the screen indicating the number of indexes (if
any) which fits the search criteria. Press the [GO]






Administrative Law Section Newsletter


key to see the listing of "index cards" which contain
profile information pertinent to each document
which fits the search. Press [Next Page] or [Prev
Page] to "flip" through the index cards.

6) To view an index card's associated document, press
[GO] while the pertinent card is displayed on the
screen. The system will then display the associated
document text within a scrollable window. Use the
[Next Page], [Prev Page], [Scroll Up] or [Scroll
Down] keys to review the document.
7) The scrollable windows will display the document
15 pages at a time. If there are subsequent pages
to the order, press the [GO] key again and the sys-
tem will retrieve and display the additional infor-
mation. To redisplay a previously viewed 15 page
section of the document, press [Prev Text] or [Fl].

8) To return to the search criteria screen press [FIN-
ISH]. To return to the index cards resulting from
the last search press [Review List] or [F3].

9) To exit from the program, press [FINISH] from the
search criteria screen.


ADDITIONAL INFORMATION

Printing Text. .
To print the entire set of documents (which are cur-
rently displayed) press [Print Doc] or [F10]. The
system will display a prompt indicating that there
is a printing fee for the document and the amount
of the fee. To continue and print the document and
accept the fee, Press [GO]. Press [FINISH] to stop
the printing process and to avoid print fee assess-
ment.
Identifying Matches or Ranges ...
The fields on this screen may be utilized to estab-
lish whether the system must search for documents
which have indexes fitting within a range of informa-
tion or documents which have indexes matching this
information.

To obtain documents whose indexes match select
information, enter the desired criteria in the "low
value" or first occurrence of the field and press [RE-
TURN]. The system will automatically copy the
same criteria to the "high value" or second field. For
example, in Figure Q1, the system would provide
information about indexes in which the recom-
mended order filed with the DOAH Clerk on Decem-
ber 19, 1987.

RULE NUMBER:
RO DATE: 12/19/87 12/19/87
FO DATE:
DCA OPINION DATE: ___
(Figure Q1)


To obtain documents whose indexes fit within a
range of information, simply change the second field
to reflect a value higher than the one in the first
field. For example, in Figure Q2 the system would
provide information about all Recommended Orders
filed with the DOAH Clerk in December 1987.

RULE NUMBER:
RO DATE: 12/01/87 12/30/87
FO DATE:
DCA OPINION DATE:
(Figure Q2)

Searching for Proper Names ...
Notice that there is a long and short field for Peti-
tioner, Respondent and Intervenor names. The long
field (on the left) is for a company name or an indi-
vidual's full name. The short field (on the right) is
for proper last names only. Utilizing these two fields
together, you may search for any configuration of
names. For example: In Figure Q3 the search would
provide information for anyone with the last name
of "Jones" whose first name starts with the letters
"Sam" (i.e., Sam, Samuel, Sampson, etc.).

PETITIONER: SAM JONES
range thru: SAMZZZZZZZZZ JONES

(Figure Q3)

Searching for DPR & HCA Cases...
When searching for cases involving the Department
of Professional Regulation (DPR) and/or the Agency
for Health Care Administration (HCA) either agency
code or prefix may be used. Search results will list
cases filed under either or both agencies. For exam-
ple, to find a case involving the Board of Acu-
puncture, a code Agency Division code of HCA/Acu
or a code of DPR/Acu could be used to access this
case.
Searching for Rule Challenge Cases ...
When searching for cases involving a rule challenge
please refer to the ACCESS-CASE SUFFIX CROSS
REFERENCE CODE REPORT in Appendix C. This
listing will identify all the possible types of rule
challenge cases identified to date. Cases filed with
the DOAH Clerk prior to 1/1/92 were categorized
under a suffix code of "R" only. If the type of rule
challenge is unclear, using a search range shown
in Figure Q4 will produce results of all type of rule
challenges filed with DOAH regardless of the filing
date.

DCA OPINION DATE:
AGENCY: /

CASE SUFFIX: R RXP
HEARING OFFICER:

continued...


Vol. XV. No. 1


SPECIAL SECTION







Admiistatie Lw Setio Nesleter PECAL ECTON Vl. V. o.


Standard Typing

DPR-Type the Division or Board name only, do not include
the Department name.

When inputting DPR Agency case no., drop the first Os.

Do not add periods to abbreviations, except when typing et
al., etc., or a person's initials.

Input CON numbers: CON (space) & the four digit number.


Pre-1990 new case styling
Div of Alcoholic Beverages & Tobacco
Div of Land Sales Condo & Mobile Homes
Crim Justice Standards & Training Comm
Construction Industry Licensing Bd
Electrical Contractors Licensing Bd
Dept of Highway Safety & Motor Vehicles
Public Employees Relations Comm


and
Assn
Bd
Comm



Co
Corp
Dept
Dist
Div
FL
Inc
Jr
Ltd
Mgmt
St

NE
NW
SE
SW


Current
DABT
LSCMH
CJSTC
CILB
ECLB
DHSMV
PERC


&
Association
Board
Commission
Community
(except Dept of
Community Affairs)
Company
Corporation
Department
District
Division
Florida
Incorporated
Junior
Limited
Management
Saint
Street
Northeast
Northwest
Southeast
Southwest


Standard Agency
Abbreviations Typing


non-DPR
Dept of Agri & Consumer S
City of Boca Raton
Central FL Flood Control
Dept of Citrus
City of Clearwater
Office of Comptroller
Dept of Banking & Finance
Div of Securities
County of Gadsden
County of Hillsborough
County of Leon
Dept of Commerce
Dept of Corrections
Mental Health Institute
County of Suwannee


DPR
DPR
Bd of Accountancy
Bd of Acupuncture
Bd of Architecture
Barbers Bd
Bd of Chirpractic Examrs
CILB
Clinical Social Workers
Bd of Cosmetology
Bd of Dentistry
ECLB
FL Real Estate Comm
Bd of Funeral Directors
Bd of Geologist
Hearing Aid Specialists


City of Tarpon Springs
Dept of Business Reg
DABT
Div of Hotels & Restuar
FLSCMH
Div of Pari-Mutual Wager
State Athletic Comm
Dept of Community Affairs
DER
Dept of General Services
Dept of Legal Affairs
Dept of Law Enforcemen
CJST
DN
Marine Fisheries Com
Dept of Administratio
Administration Com
Career Service Comn
DOA
Human Relations Comn
Bureau of Insurance
Div of Retirement
DOE
Dept of Lottery
Dept of State
Div of Corporations
Div of Licensing
Bureau of Mgmt Systems
DOT


Search Code
AAN
AGR
AGRA
BCS
CH CC
CH CE
CH CH
CH CL
CH CP
CH CSH
CH CT
CH CTS
CH ECUA
CH EWD
CH JEPA
CH PPC
CIT
CMP
CMPBF
CMPCC
CMPSec
COM
COR
CORMHI
CPA
DBR
DBRDABT
DBRHR
DBRLSCMH
DBRPMW


Bd of Landscape Architect
Bd of Land Surveyors
DPR (Marriage & Family)
Bd of Massage
Bd of Medical Examiners
Mental Health Counselors
Bd of Naturopathic
Bd of Nursing Home Admins
Bd of Nursing
Bd of Opticianry
Bd of Optometry
Bd of Osteopathic
Bd of Paramedics
Bd of Pharmacy
Bd of Pilot Commissioners
Bd of Podiatry
Bd of Profess Engineers
Bd of Psychological Exams
Bd of Physical Therapists
Bd of Talent Agencies
Bd of Veterinary Medicine


Search Code Description
Alachua Annexation
Dept. ofAgri & Consumer Services
Agriculture-Produce Dispute Cases
Broward County Sheriff's Office
City of Clearwater
City of Eustis
County of Hillsborough
County of Leon
County of Pinellas
City of Safety Harbor
City of Tallahassee
City of Tarpon Springs
Escambia County Utilities Authority
Englewood Water District
Jax Environ Protection Agency
Pinellas Planning Council
Dept of Citrus
Office of Comptroller
Dept of Banking & Finance
Citrus Canker
Div of Securities
Dept of Commerce
Dept of Corrections
Mental Health Institute
Canaveral Port Authority
Dept of Business Regulation
Div of Alcoholic Beverages & Tobacc
Div of Hotels & Restaurants
Land Sales Condominiums & Mobile Hm
Div of Pari-Mutual Wager


Division of Administrative Hearings
Access-Agency/Division Cross
Reference Code Report


C


SPECIAL SECTION


Administrative Law Section Newsletter


Vol. XV. No. 1








Vol. XVNo. 1 SECIAL SCTION A&i tf'' 1rnx. Qw,+.^ V -J1~a #+r


DBRSAC
DCA
DCAFHF
DER
DGS
DLA
DLAVC
DLE
DLECJSTC
DNR
DNRCA
DNRMFC
DOA
DOAAC
DOAAP
DOACSC
DOADOAH
DOAHRC
DOAIns
DOARet
DOE
DOE01
DOE02
DOE03
DOE04
DOE05
DOE06
DOE07
DOE08
DOE09
DOE10
DOE11
DOE12
DOE13
DOE14
DOE15
DOE16
DOE17
DOE18
DOE19
DOE20
DOE21
DOE22
DOE23
DOE24
DOE25
DOE26
DOE27
DOE28
DOE29
DOE30
DOE31
DOE32
DOE33
DOE34
DOE35
DOE36
DOE37
DOE38
DOE39
DOE40
DOE41
SDOE42
DOE43
DOE44
DOE45
DOE46
DOE47


State Athletic Comm
Dept of Community Affairs
FL Housing Finance Agency
Dept of Environmental Regulation
Dept of General Services
Dept of Legal Affairs
Victims Compensation
Dept of Law Enforcement
Criminal Justice Stndrds & Trng Comn
Dept of Natural Resources
Canal Authority of FL
Marine Fisheries Comm
Dept of Administration
Administration Commission
Abandonment of Position
Career Service Comm
Div of Administrative Hearings
Human Relations Commission
Div of State Employees Insurance
Div of Retirement
Dept of Education
Alachua County Sch Bd
Baker County Sch Bd
Bay County Sch Bd
Bradford County Sch Bd
Brevard County Sch Bd
Broward County Sch Bd
Calhoun County Sch Bd
Charlotte County Sch Bd
Citrus County Sch Bd
Clay County Sch Bd
Collier County Sch Bd
Columbia County Sch Bd
Dade County Sch Bd
DeSoto County Sch Bd
Dixie County Sch Bd
Duval County Sch Bd
Escambia County Sch Bd
Flagler County Sch Bd
Franklin County Sch Bd
Gadsden County Sch Bd
Gilchrist County Sch Bd
Glades County Sch Bd
Gulf County Sch Bd
Hamilton County Sch Bd
Hardee County Sch Bd
Hendry County Sch Bd
Hernando County Sch Bd
Highlands County Sch Bd
Hillsborough County Sch Bd
Holmes County Sch Bd
Indian River County Sch Bd
Jackson County Sch Bd
Jefferson County Sch Bd
Lafayette County Sch Bd
Lake County Sch Bd
Lee County Sch Bd
Leon County Sch Bd
Levy County Sch Bd
Liberty County Sch Bd
Madison County Sch Bd
Manatee County Sch Bd
Marion County Sch Bd
Martin County Sch Bd
Monroe County Sch Bd
Nassau County Sch Bd
Okaloosa County Sch Bd
Okeechobee County Sch Bd


DOE48
DOE49
DOE50
DOE51
DOE52
DOE53
DOE54
DOE55
DOE56
DOE57
DOE58
DOE59
DOE60
DOE61
DOE62
DOE63
DOE64
DOE65
DOE66
DOE67
DOEBCC
DOEBOR
DOEBS
DOECFCC
DOEDay
DOEEPC
DOEEPCD
DOEFAMU
DOEFAU
DOEFIU
DOEFJCJ
DOEFKCC
DOEFSU
DOEHCC
DOEIC
DOEIPSVTT
DOEIRCC
DOELCCC
DOELSCC
DOEMDCC
DOEMJC
DOENFJC
DOEOWJC
DOEPBJC
DOEPCC
DOEPHCC
DOESCC
DOESDB
DOESFCC
DOESFJC
DOESJRJC
DOESPJC
DOESUS
DOETCC
DOEUCF
DOEUF
DOEUM
DOEUNF
DOEUSF
DOEUWF
DOEVCC
DOL
DORPilot
DOS
DOSCorp
DOSLic
DOSLicS
DOSMan


Orange County Sch Bd
Osceola County Sch Bd
Palm Beach County Sch Bd
Pasco County Sch Bd
Pinellas County Sch Bd
Polk County Sch Bd
Putnam County Sch Bd
St Johns County Sch Bd
St Lucie County Sch Bd
Santa Rosa County Sch Bd
Sarasota County Sch Bd
Seminole County Sch Bd
Sumter County Sch Bd
Suwannee County Sch Bd
Taylor County Sch Bd
Union County Sch Bd
Volusia County Sch Bd
Wakulla County Sch Bd
Walton County Sch Bd
Washington County Sch Bd
Broward Community College
Bd of Regents
Div of Blind Services
Central FL Community College
Daytona Bch Community College
Education Practices Commission
EPC-Declaration of Default Cases
FL A & M University
FL Atlantic University
FL International University
FL Jr College of Jacksonville
FL Keys Community College
FL State University
Hillsborough Comm College
Bd of Indep Colleges & Universities
Ind Post-Sec/Vo-Tech/
Indian River Community College
Lake City Community College
Lake-Sumter Community College
Miami-Dade Comm College
Manatee Jr College
North FL Jr College
Okaloosa-Walton Jr College
Palm Beach Jr College
Polk Comm College
Pasco-Hernando Community College
Seminole Community College
Sch for the Deaf & Blind
Santa Fe Community College
South FL Jr College
St Johns River Jr College
St Petersburg Jr College
State University System
Tallahassee Community College
University of Central FL
University of FL
University of Miami
University of North FL
University of South FL
University of West FL
Valencia Community College
Dept of Lottery
Bd of Pilot Commissioners
Dept of State
Div of Corporations
Div of Licensing
License Denial Cases
Bureau of Mgmt Systems
continued...


Vol. XV. No. 1


SPECIAL SECTION


brlmin;ptrsr~;~~o ~.nr.r ~Cnn):rr~ hT~~t~laC~~r








Administrative Law Section Newsletter SPECIAL SECTION Vol. XV. No. 1


DOT
DOTT
DPR
DPRAcc
DPRACU
DPRArch
DPRASP
DPRAuct
DPRBA
DPRBarb
DPRChir
DPRCILB
DPRClin
DPRCoS
DPRDent
DPRECLB
DPRFREAB
DPRFREC
DPRFun
DPRGeo
DPRHrg
DPRLA
DPRLS
DPRMarr
DPRMass
DPRME
DPRMH
DPRNat
DPRNHA
DPRNurs
DPROpti
DPROpto
DPROst
DPRPara
DPRPhar
DPRPilot
DPRPMW
DPRPod
DPRProf
DPRPsy
DPRPT
DPRTA
DPRVet
ETH
FWF
GOV
GOVFLWAC
GOVHCCB
HCAAcu
HCAChir
HCAClin
HCACON
HCADent
HCAHCCB
HCAM
HCAMarr

HCAMH
HCANat
HCAOPLC
HCAOpto
HCAOst
HCAPhar
HCAPod
HCAPsy
HCAPT
HCAVet
HRS


Dept of Transportation
DOT-Sign Cases
Dept of Professional Regulations
Bd of Accountancy
Bd of Acupuncture
Bd of Architecture
Bd of Audiology & Speech Pathology
Bd of Auctioneers
Behavior Analysis
Barbers Bd
Bd of Chiropractic Examiners
Construction Industry Licensing Bd
Clinical Social Workers
Bd of Cosmetology
Bd of Dentistry
Electrical Contractors Licensing Bd
FL Real Estate Appraisal Bd
Div of Real Estate
Bd of Funeral Directors
Bd of Geologist
Hearing Aid Specialists
Bd of Landscape Architects
Bd of Land Surveyors
DPR (Marriage & Family)
Bd of Massage
Bd of Medical Examiners
Mental Health Counselors
Bd of Naturopathic
Bd of Nursing Home Administrators
Bd of Nursing
Bd of Opticianry
Bd of Optometry
Bd of Ostopathic
Bd of Paramedics
Bd of Pharmacy
Bd of Pilot Commissioners
Div of Pari-Mutual Wagering
Bd of Podiatry
Bd of Professional Engineers
Bd of Psychological Examiners
Bd of Psysical Therapists
Bd of Talent Agencies
Bd of Veterinary Medicine
Ethics Commission
Game & Fresh Water Fish Commission
Office of the Governor
FL Land & Water Adjudicatory Comm
Healthcare Cost Containment Bd
DPR AHCA Bd of Acupuncture
DPR AHCA Bd of Chirpractic Examrs
DPR AHCA Clinical Social Workers
DPR AHCA Certificate of Need Cases
DPR AHCA Bd of Dentistry
DPR AHCA Hosp. Cost Containment Bd
DPR AHCA Bd of Medicine
DPR AHCA Marriage & Family
Therapists
DPR AHCA Mental Health Counselors
DPR AHCA Bd of Naturopathic
DPR AHCA Office of Licensure & Cert
DPR AHCA Bd of Optometry
DPR AHCA Bd of Osteopathic
DPR AHCA Bd of Pharmacy
DPR AHCA Bd of Podiatry
DPR AHCA Bd of Psychologists
DPR AHCA Bd of Physical Therapists
DPR AHCA Bd of Veterinary Medicine
Dept of Health & Rehabilitative Srv


HRSAMH
HRSASAS
HRSASCA
HRSASPE
HRSBCMH
HRSBL
HRSBP
HRSC
HRSEMS
HRSFSH
HRSGPWMH
HRSHor
HRSJAHVH
HRSNEFSH
HRSNFETC
HRSOPCMS
HRSOPHEN
HRSOPHLS
HRSOPHR
HRSOPLC
HRSOSRA
HRSPDAA
HRSPDCF
HRSPDCM
HRSPDCYF
HRSPDDM
HRSPDDS
HRSPDES
HRSPDHE
HRSPDHERX
HRSPDHS
HRSPDMH
HRSPDVR
HRSPHIRS
HRSSara
HRSSFETC
HRSSFSH
HRSSH
HRSTHH
HRSVAH
HRSVAMC
HRSWFCCC
HSM
INS
INSMA
INSRateA
INSRateC
JAX
LES
LESAP
LESET
LESSI
LESUC
LESVR
LESWC
LRE
NEF
NFB
PAC
PCC
PCH
PPC
PSC
REV
SFR
SLE
SMDSWF
STA


Anclote Manor Hospital
Audit Services
Office of Central Administrative Sv
Office of Personnel
Broward County Mental Health
Bay Life Acute Care Center
Bay Pines VA Medical Center
HRS-Child Abuse Cases
Emergency Medical Services
FL State Hospital
G. Pierce Wood Memorial Hospital
Horizon Hospital
James A. Haley Veteran's Hospital
Northeast FL State Hospital
North FL Evaluation & Treatment Ctr
Prog of Children's Medical Services
Office of Entomology
Office of Laboratory Services
Office of Radiological Health Servs
Office of Licensure & Certification
Office of Refugee Administration
Program Dev for Aging & Adult Servs
Office of Community Medical Facilts
Prog Devel for Children Med Service
Prog Dev for Children Youth & Famls
Program Devl for Medicaid Disputes
Developmental Services Program
Economic Services Program
Health Program Office
Health Program Office Pharmacy
Program Devl for Human Services
Program Devl for Mental Health
Program Devl for Vocational Rehab
HRS-Child Support Cases
Sarasota Palms Hospital
South FL Evaluation & Treatment Ctr
South FL State Hospital
Seagrave House
Tampa Heights Hospital
Veterans Administration Hospital
Veterans Administration Medical Ctr
West FL Community Care Center
Dept of Highway Safety & Motor Vehc
Dept of Insurance & Treasurer
Medical Arbitration
Dept of Ins & Treasurer-Rate/Auto
Dept of Ins & Treas-Rate/Casualty
Jacksonville (archived files)
Dept of Labor & Employment Securits
Bureau of Agricultural Programs
Div of Employment & Training
Bureau of Self Insurance
Div of Unemployment Compensation
Div of Vocational Rehabilitation
Div of Workers Compensation
Loxahatchee River Envirn Cntrl Dstr
Northeast FL Regional Planning Cncl
Northern Palm Bch Cnty Wtr Cntr Dst
Performing Arts Center Authority
Pinellas County Constr Licensing Bd
Panama City Housing Authority
Parole & Probation Commission
Public Service Commission
Dept of Revenue
South FL Regional Planning Councel
St Lucie Co Expressway Authority
Southwest FL Water Mgmt District
State Attorney


SPECIAL SECTION


Administrative Law Section Newsletter


Vol. XV. No. 1








Vol.. ...... 1 SePEtIALn SECTION


WMDNWF
SWMDSFW
WMDSJR
WMDSRW
WMDSWF
WMDWCR


Search Code

AAN
*B
BID
C
D
DRI
**E
EC
EPP
F
GM
H
HSR
IC
K
L
MA
ML
*** R
RE
REP
RGM
RP
RPP
RU
RUP
RX
RXP
S
T
TL
VC
VR


Northwest FL Water Mgmt District
South FL Water Mgmt District
St Johns River Water Mgmt District
Suwannee River Water Mgmt District
Southwest FL Water Mgmt District
West Coast Regional Wtr Supply Auth


Search Code Description

Alachua Annexation
Baker Act
Bid Case
Child Abuse
Declaration of Default
Develop Regional Impact
Exceptional Education
Ethics Commission
Elec Power Plant Site Ct
Fees Case
Growth Management
Healthcare Cost Cnt Board
High Speed Rail Transport
Indigent Care
Citrus Canker
Low Income Energy Asstan.
Medical Arbitration
Magnetic Levitation Cases
Rule Challenge
Rule/Emergency
Rule/Emergency/Prisoner
Rule/Growth Management
Rule/Proposed
Rule/Proposed/Prisoner
Rule/Unpromulgated
Rule/Unpromulgated/Prisnr
Rule/Existing
Rule/Existing/Prisoner
DOS-License Denial Case
DOT-Sign Case
Transmission Line Siting
Victims Compensation
Vested Rights


TOTAL NUMBER OF RECORDS: 33

* Restricted from public viewing pursuant to Chapter
394.459(9)(f), Florida Statutes.

** Restricted from public viewing pursuant to Chapter
230.23(4)(m)4, Florida Statutes.

*** Prior to January 1, 1992, all Rule Challenge cases were
categorized under the case suffix of "R" only.


Division of Administrative Hearings
Access-Hearing Officer Cross
Reference Code Report


TOTAL NUMBER OF RECORDS: 307



Division of Administrative Hearings
Access-Case Suffix Cross
Reference Code Report


Search Code


Adams
Alexander
Arrington
Ayers
Benton
Bradwell
Caleen
Carpenter
Cave
Clark
Cleavinger
Conn
Davis
Davisd
Dean
Diez
Dodson
Donnelly
Dorsey
Grubbs
Hayman
Hunter
Johnston
Kendrick
Kiesling
Kilbride
Lerner
Manry
Meale
Menton
Oldham
Parrish
ParrishJ
Pollock
Powell
Quattlebaum
Rigot
Ruff
Sartin
Sherrill
Smith
Stevenson
Tremor
York


Search Code
Description

Charles C. Adams
Donald R. Alexander
Claude B. Arrington
K. N. Ayers
Robert T. Benton, II
James E. Bradwell
R. L. Caleen, Jr.
R. T. Carpenter
William R. Cave
Mary Clark
Diane Cleavinger
Donald D. Conn
Ella Jane P. Davis
Don W. Davis
Stephen F. Dean
Jose Diez-Arguellas
Michael P. Dodson
Veronica E. Donnelly
William R. Dorsey, Jr.
Diane A. Grubbs
Jane C. Hayman
Eleanor M. Hunter
J. Lawrence Johnston
William J. Kendrick
Diane K. Kiesling
Daniel M. Kilbride
Stuart M. Lerner
Daniel S. Manry
Robert E. Meale
J. Stephen Menton
Thomas C. Oldham
Michael M. Parrish
Joyous D. Parrish
Arnold H. Pollock
Errol H. Powell
William F. Quattlebaum
Linda M. Rigot
P. Michael Ruff
Larry J. Sartin
William C. Sherrill
Sharyn L. Smith
Matthew W. Stevenson
Diane D. Tremor
James W. York


TOTAL NUMBER OF RECORDS: 44


Present/
Former?

Present
Present
Present
Present
Present
Present
Former
Former
Present
Present
Present
Former
Present
Present
Present
Former
Former
Former
Present
Former
Former
Present
Present
Present
Present
Present
Present
Present
Present
Present
Former
Present
Present
Present
Present
Present
Present
Present
Present
Former
Present
Former
Former
Present


SPECIAL SECTION


Vol. XV, No. 1


Administmtivc? T.nw SPntinn NpWClpllpy






Administrative Law Section Newsletter


Vol. XVNo. 1


Minutes

Administrative Law Section

Executive Council Meeting
Friday, June 25, 1993
Lake Buena Vista, Florida


I. Call to Order
The meeting was called to order
by Section Chair G. Steven Pfeiffer.
Members present: G. Steven Pfeif-
fer, Stephen T. Maher, Vivian F.
Garfein, Linda M. Rigot, Betty Stef-
fens, Catherine Lannon, Kathy Cas-
tor, Ralf G. Brooks, Dave Watkins,
Veronica Donnelly, Bill Williams,
Carol Forthman.
Others in attendance were: Dan
Stengle, Rex Ware, Peter D. Os-
treich

II. Preliminary Matters
A. The chair acknowledged the re-
cent death ofJon Rossman and dedi-
cated the annual meeting to his mem-
ory.
Tom Smith, Chair-elect of the
Bar's CLE Committee was intro-
duced.
C. Consideration of the minutes
from the April 30, 1993 meeting
The minutes from the prior meet-
ing were approved.
D. Treasurer's Report
The Treasurer reported that there
was approximately $26,000 in the
Treasury.
E. Chair Report
The chair reserved his report for
the Annual Meeting.

III. Committee Reports
A. Long Range Planning Committee
Stephen T. Maher gave the commit-
tee report. It was reported that five
Administrative Law Section events
are planned for the 1993-94 bar
year. CLE programs are planned for
the fall and spring, the Pat Dore Me-
morial Administrative Law Confer-
ence is planned for early October
and the Public Utilities Committee,
which is merging into the section,
will present its annual program in
April, 1994 as a section event for the
first time next year.
B. CLE Committee
It was announced that Bill Dorsey
accepted a position as a Federal Ad-


ministrative Law Judge and is leav-
ing the State in a few weeks. Carol
Forthman reported that a joint semi-
nar with the Local Government Sec-
tion is planned for February. Kathy
Castor will co-chair with Jim Linn.
C. Publications Committee
Linda Rigot reported that two col-
umns out of five for the coming
year's Florida Bar Journal are com-
mitted. Dave Watkins has agreed to
serve as Editor. There will be a Spe-
cial Issue of the Journal in January,
1994 on Small Firm Solo practitio-
ners. Bill Williams has agreed to
write a piece on "Leaving Govern-
ment-The Problems and Perils of
Starting Your Own Practice".
Veronica Donnelly is retiring as
co-editor of the Newsletter. John
Newton and Bill Hyde will serve as
co-chairs during the coming year.
We have been experiencing
problems with the printing of the
Newsletter. It appears that several
other sections of the Bar have been
experiencing similar difficulties. The
matter will be brought at the next
Council of Sections meeting.
D. Finance Committee
Linda Rigot reported that there
has not been a meeting of the com-
mittee since the last Section meet-
ing.
E. Legislative Committee
Betty Steffens reported that, grate-
fully, the legislature is still out of
session! The House Select Commit-
tee on Agency Rules has created an
agency task force. Members of the
section serving on the task force are
Johnny Burris, Steve Pfeiffer,
Stephen Maher, Betty Steffens and
Dan Stengle. Three working groups
have been formed working on the fol-
lowing issues: (1) summary proceed-
ings for those representing them-
selves, (2) revision to 120.54 rule-
making, (3) judicial review and leg-
islative oversight. The task force
will meet the 2nd and 4th Wednes-


day of each month until September.
F. Pat Dore Distinguished Profes-
sorship Committee
Vivian Garfein reported that the
mail merge listing has finally been
completed and letters will go out to
all of Pat's former students early
Fall. Dean Weidner invited Vivian
to address the FSU alumni at a recep-
tion last night during which pledge
cards were distributed. In addition,
Vivian, Paul Jess, and members of
the Executive Council have been
"working" the convention, distribut-
ing pledge cards.
G. Task Force Reports
A letter submitted by Gary
Stephens will be distributed with
the next agenda.
H. Florida Bar Liaison
Stephen Maher reported that the
Conference on the Constitutional
Convention will be discussed at
tomorrow's meeting.
I. Membership Committee
Kathy Castor reported that we
have had an increase of 5-6% in mem-
bership this past year. Personal let-
ters from the chair were sent to all
members of the Environmental and
Land Use Law Section, inviting
them to join. Kathy anticipates fur-
ther increases after the Bar dues
statements are received.
J. Model Rules Revision Commit-
tee
The committee has met twice dur-
ing the past year and will meet
again in July. Steve Pfeiffer plans
to have a draft ready for the October
Administrative Law Conference. He
will continue to chair the commit-
tee.
K. Administrative Law Conference
Bill Williams reported that the
dates for the conference are October
1 and 2. He further discussed the
nine substantive topics under con-
sideration and requested assistance
from members of the Executive Coun-
cil.


-r





^F~t-


Vol XV o






Vol XV No 1Administrativen Law Metlnin Newsaletter


L, Public Utilities Law Committee
Denise Bryant informed us that
the committee would be meeting in
the afternoon,
M. Florida Constitution Confer-
ence
A letter has been sent to various
individuals requesting participation
on the steering committee which,
Steve Maher reported, will be bal-
anced between Democrats and Re-
publicans, Steve hopes to involve as
many sections as possible and will
encourage them to bring issues par-
ticular to their sections to the con-
ference.
IV. Old Business
A, Designation Program Issues
The Local Government section is


very interested in certification. The
ELULS sent a questionnaire out to
its membership with a 20% response
showing over 50% in favor. Members
of the Executive Council expressed
traditional opposition, Ralf Brooks
will continue to chair and monitor
this issue.

B. Public Utilities Committee Mer-
ger
The group will meet this after-
noon; therefore no report,


V, New Business
A, Nominations
Nominations were as follows:
For continuing terms; Johnny Bur-


ris, Dave Watkins, Kathy Castor,
Betty Steffens, and Diane Tremor,
Chair-Elect: Vivian F, Garfein
Secretary: Linda M. Rigot
Treasurer: William E, Williams
Executive Council: Robert Rhodes,
Denise Bryant
VI. Time and place of next meet.
ing
The next meeting will be held in
conjunction with the Pat Dore Ad-
ministrative Law Conference,
VII. Adjournment
The meeting was adjourned at
10:05 a.m.


Administrative Law Section

Annual Meeting


June 25, 1993
Lake Buena Vista, Florida
I. Call to Order
The meeting was called to order at
10:15 a.m.
II. Election of Officers and Mem.
bers of the Executive Council
Those nominated were elected by
acclamation,
III. Comments, Presentation of
Awards by Outgoing Chair
Outgoing Chair, Steve Pfeifrer, gra-
ciously accepted praise for others
good work, He felt that we had the
est newsletter of any sections and
suggested that we continue to con-
centrate on substantive issues. He
also thanked Bill Dorsey for the ex-
cellent CLE programs during the


past year; Bill will be missed by all,
Model Rules are well underway and
Steve will continue that effort, Mem-
bership in the section increased dur-
ing the past year, Most important
of, Steve's goal was to have fun dur.
ing the past year, and he felt that
we had,
Steve presented the following
awards:
Bill Dorsey-for serving as CLE
chair for the past three years,
Betty Steffens--for her continuing
work with the Legislative program,
Bill Hyd-efor his unusual recy.
cling of self, After serving as past
chair, Bill has returned as co-editor
of the newsletter,
Veronica Donnelly-for her work
as co-editor of the newsletter,
M, Catherine Lannon-for her


overall contribution to the section,
Linda M, Rigot=for her work as
publications chair and Treasurer,
Gene Stillman=a special award
from Steve with thanks for his help
to the Chair,
IV, Introduction of and Com-
ments by Incoming Chair
Incoming Chair, Steve Maher,
thanked the outgoing chair for the
past successful year and presented
teve Pfelffer with a plaque in ap-
preciation, The new Chair briefly re-
viewed the upcoming events for his
term, which include the Florida Con-
stitutional Conference to be held in
April,


V, Adjournment
The meeting was
10;80 am,


adjourned at


Coming up;

Midyear Meeting of The Florida Bar
January 12-15, 1994
Hilton at Walt Dianey World Village
Details in future issues of The Florida Bar News,


Vol. XV. No. 1


bdmfFlln~ratlvs fa~u 8antlF1~ Na~vnlal.l.aP










FLORIDA

ADMINISTRATIVE

PRACTICE

(4th ed. 1993)
About the Book
[I! j This 13-chapter manual, produced in cooperation with the Administrative
Law Section, provides a convenient desk reference for attorneys practicing
administrative law. Chapters provide in-depth discussion of the Administrative
Procedure Act, general administrative practice, and practice before specific state
agencies. An appendix contains the full text of F.S. Chapter 120, the Model Rules
(Fla. Admin. Code Rules 28-1-28-8), and the rules for the Division of
Administrative Hearings (Fla. Admin. Code Rules 60Q-1-60Q-4).
The chapter titles and authors are The Administrative Process And
Constitutional Principles, Johnny C. Burris; Overview Of The Administrative
Procedure Act, F. Scott Boyd; Rule Adoption And Review, Thomas G. Pelham;
Administrative Adjudication, Robert T. Benton II, G. Steven Pfeiffer, and
Katherine Castor; Informal Proceedings, Charles Gary Stephens; Professional
And Occupational Licensing, Veronica E. Donnelly; Regulatory Agencies,
Robert S. Cohen; Environmental Agencies, Randall E. Denker; Department Of
Revenue, Daniel S. Manry, Jr.; Public Service Commission, Kathleen A.
Villacorta and Patrick K. Wiggins; Bid Dispute Resolution, F. Alan Cummings
and Mary P. Piccard; Judicial Review, Cynthia S. Tunnicliff; and Attorneys'
Fees And Cost Awards, Robert T. Benton II.
710 pages, looseleaf, $80

Yes! Send me_ copies No. 205d FLORIDA ADMINISTRATIVE PRACTICE @ $80/ea.
SDO / DO NOT automatically send me future supplements and new editions for 90-day
approval or return. (Unless otherwise indicated, your subscription will be entered for this manual.)
Attorney or Firm Account No. Subtotal $
Name Tax-exempt No. (if applicable) Sales Tax* $
Address TOTAL $
City State Zip Code Phone Check No.
*Include sales tax unless ordering party is tax-exempt and provides tax-exempt name and number above or is a nonresident
of Florida.
TO Order Mail your check and this order to CLE Publications, The Florida Bar, 650 Apalachee
Parkway, Tallahassee, FL 32399-2300. (904)561-5843.
Prices effective through June 30, 1993 10/93: Code 4
!"


F






ul~.. strauLive Law vecioln i'ewsletter


Attorney's Fees and Costs in

Administrative Proceedings
by David M. Caldevilla
de la Parte & Gilbert, P.A.
Tampa, Florida


A primary purpose of the Admin-
istrative Procedure Act is to provide
inexpensive and expeditious resolu-
tion to disputes arising from state
agency activities.1 Nonetheless, the
administrative hearing process can
often become protracted and com-
plex, and the legal expenses of prose-
cuting or defending an administra-
tive proceeding can weigh heavily on
the parties involved. These expenses
are compounded because most ad-
ministrative proceedings do not re-
sult in monetary awards to the pre-
vailing litigants. Consequently, at-
torneys should take advantage of
the opportunities available to re-
cover their clients' legal expenses in
such administrative proceedings.
The statutes most frequently re-
lied upon statutory provisions for
awarding attorney's fees and costs
in administrative proceedings are
the Florida Equal Access to Justice
Act of section 57.111, Florida Stat-
utes, and the "improper purpose" pro-
visions of sections 120.57, and
120.59, Florida Statutes. While abun-
dant authority to recover legal ex-
penses in administrative cases can
be found in other rules and stat-
utes,2 this article focuses on the me-
chanics and pitfalls of seeking at-
torney's fees and costs under the
more popular statutes.

A. Florida Equal Access to
Justice Act
Section 57.111, the Florida Equal
Access to Justice Act (the "Act"), pro-
vides a means to recover up to
$15,000 in attorney's fees and costs
for "a prevailing small business
party in any administrative pro-
ceeding pursuant to chapter 120 in-
itiated by a state agency, unless the
actions of the agency were sub-
stantially justified or special circum-
stances exist which would make the
award unjust." The Act is intended
to remove economic deterrents asso-
ciated with contesting unreasonable


governmental action. Unlike most
other attorney's fees and costs stat-
utes, the Act requires the party seek-
ing recovery to file a separate action
upon conclusion of the underlying ad-
ministrative proceeding. Another
unique aspect of the Act is that it
allows the prevailing small business
party to recover legal expenses in-
curred while pursuing its attorney's
fees.3
The Act includes definitions for all
of the important terms. However,
these definitions are often subject to
varying interpretations and some-
times surprising results. For exam-
ple, there is considerable case law
discussing what constitutes a small
business party, a prevailing party,
and substantially justified agency ac-
tions. These decisions suggest that
entitlement to recovery under the
Act can at times be unclear.4 In ad-
dition, the Act prohibits recovery
from a state agency which was only
a "nominal party" to the proceed-
ing.5 There is also an exemption for
proceedings "involving establish-
ment of a rate or rule or to any ac-
tion sounding in tort." Accordingly,
attorneys should do some prelimi-
nary research to determine whether
the administrative proceedings, the
client, and the state agency involved
fall within the Act. If the issue of
entitlement is unclear, the client
may wind up incurring additional
nonrecoverable legal expenses by pur-
suing attorney's fees and costs aris-
ing from the underlying administra-
tive proceeding. When researching
the issue of entitlement, attorneys
should note that the Act is patterned
after the federal Equal Access to Jus-
tice Act (5 USC 504) and, conse-
quently, federal case law on the
same subject should be persuasive.6
To initiate a proceeding under the
Act, a small business party must file
a petition for attorney's fees and
costs with the Division of Adminis-
trative Hearings ("DOAH") within


60 days7 of prevailing in the under-
lying proceeding.8 An untimely peti-
tion is subject to dismissal.9 The al-
legations must comply with DOAH's
pleading requirements set forth in
Florida Administrative Code Rule
60Q-2.035(1). The petition must be
accompanied by an itemized affida-
vit executed by the prevailing
business party's attorney stating the
nature, extent, and monetary value
of his or her services and the costs
incurred in the proceeding."10
The agency must file a response
within 20 days of the petition being
filed. The response must (a) indicate
whether the agency seeks an eviden-
tiary hearing, (b) admit or deny the
petitioner's allegations, and (c) spec-
ify applicability of any defenses. The
agency may also file an opposing af-
fidavit specifying each item of dis-
puted fees and costs.1 Failure to
timely file a response may result in
the petitioner's allegation being
deemed admitted.12
Within 10 days of the agency's re-
sponse being filed, the petitioner
may request an evidentiary hearing.
The parties' failure to timely request
an evidentiary hearing may result
in a waiver. In that event, the
DOAH hearing officer assigned to
the case may elect to decide the is-
sues of entitlement and amount
based upon the pleadings, support-
ing documents, and any pertinent
DOAH files or records.13 Regardless
of whether or not an evidentiary hear-
ing is to be conducted, the parties
would be wise to file a motion re-
questing the hearing officer to take
official recognition of the pleadings,
transcripts, and evidence filed in the
underlying administrative proceed-
ing.14 This will provide the hearing
officer and any appellate courts re-
viewing the case a superior record
upon which to base a decision on the
issue of attorney's fees and costs.
continued...


Vol. XV. No. 1







Administrative Law Section Newsletter Vol XV No 1


ATTORNEYS' FEES
from preceding page


B. "Improper Purpose"
Statutes
Sections 120.57(1)(b)5 and
120.59(6) both provide for attorney's
fees and costs where an adverse
party has been involved in "im-
proper" activities during the admin-
istrative proceeding. Although these
two statutes have similarities, they
also differ in several significant re-
spects.
1. Section 120.57(1)(b)5
Under section 120.57(1)(b)5, when
a pleading, motion, or other paper
is interposed for any "improper pur-
poses, such as to harass or to cause
unnecessary delay or for frivolous
purpose or needless increase in the
cost of litigation", the hearing officer
can impose upon the person who
signed it, a represented party, or
both, an appropriate sanction, which
may include an order to pay the rea-
sonable attorney's fees and costs in-
curred because of the filing.
Under a plain reading of section
120.57(1)(b)5, the sanctions can be
applied against agencies and non-
agencies alike, as well as their at-
torneys or qualified representatives.
Liability for such sanctions cannot
be avoided by merely filing a volun-
tary dismissal or otherwise withdraw-
ing the document filed for improper
purpose.15 The recipient of an attor-
ney's fee award under section
120.57(1)(b)5 need not be a "prevail-
ing party,"16 nor will sanctions be
imposed against a party merely for
failing to prevail.17
As noted in Mercedes Lighting &
Electrical Supply, Inc. v. Dept. of Gen-
eral Srvcs., 560 So.2d 272 (Fla. 1st
DCA 1990), section 120.57(1)(b)5 is
similar to Federal Rule of Civil Pro-
cedure 11. Accordingly, case law
interpreting Rule 11 should be con-
sidered persuasive in determining
whether an adverse party's legal pa-
pers have been interposed for an "im-
proper purpose." Moreover, the Mer-
cedes decision itself provides ad-
ditional guidance:

Examples of improper purpose which
were mentioned during the legislative
debate of section 120.57(1)(b)5 include


health care certificate of need litigation,
where one existing provider of health
care services ties up the application of a
competitor in administrative proceed-
ings and judicial appeals for years while
continuing to enjoy the benefits of a
monopoly on services; and environ-
mental permitting proceedings, where a
competing developer or a homeowners'
group creates administrative and judi-
cial delays in the permitting process so
as to bankrupt the applicant developer,
either directly through the cost of litiga-
tion or indirectly through the loss of fi-
nancing or foreclosure on the property.

Mercedes Lighting, 560 So.2d at 277-
278, n. 5.
In determining whether a docu-
ment has been filed for an improper
purpose, the hearing officer is not
to determine whether the party who
filed it did so in bad faith. If a "rea-
sonably clear legal justification" can
be shown for filing the paper, no im-
proper purpose can be found.'8
It seems fairly clear that the issue
of whether a document was filed for
an "improper purpose" is a factual
one, to be determined by the hear-
ing officer.19 Although there are de-
cisions suggesting that section
120.57(1)(b)5 attorney's fees can be
sought in a separate DOAH proceed-
ing or awarded by a separate DOAH
final order,20 the statute is actually
silent on this subject and, other than
the Act, there is no clear authority
giving DOAH jurisdiction to con-
sider a separate petition for attor-
ney's fees and costs. Therefore, cau-
tion dictates that counsel should file
a motion requesting the sanctions as
soon as it becomes clear that an op-
posing party has filed a document
for an improper purpose and, in any
event, before the hearing officer re-
linquishes jurisdiction over the un-
derlying litigation.21
An evidentiary hearing is not re-
quired to determine whether sanc-
tions should be imposed. However,
where there is conflicting evidence
on the issue of improper purpose,
counsel should attempt to present
it to the hearing officer at an appro-
priate time.22 Moreover, in order to
preserve the issue for appeal, the
moving parties' proposed recom-
mended order should include pro-
posed findings of fact supporting the
allegations of improper purpose. Like-
wise, evidence and proposed findings


of fact should also be submitted to
establish the reasonable amount of_
attorney's fees and costs to be o
awarded.
2. Section 120.59(6)
Under section 120.59(6), a prevail-
ing party in any proceeding pursu-
ant to section 120.57(1) is entitled
to recover its reasonable attorney's
fees and costs from a nonprevailing
adverse party. The statute is in-
tended to penalize intervenors who
participate in a series of proceedings
to harass or otherwise delay their
opponents.23 Unlike section
120.57(1)(b)5, section 120.59(6) does
not apply to a prevailing or nonpre-
vailing party that is an agency or to
non-agency parties' attorneys or
qualified representatives.
The procedure for obtaining an at-
torney's fee award under section
120.59(6) is clearer than under sec-
tion 120.57(1)(b)5. Under section
120.59(6)(c), the hearing officer must
determine whether the nonprevail-
ing adverse party has participated
in the proceeding for an "improper
purpose."24 In making that determi-
nation, the hearing officer must con-
sider whether the nonprevailing
party has participated in two or
more other proceedings involving
the same non-agency prevailing
party and the same project as an
adverse party, whether the nonpre-
vailing party failed to establish
either the factual or legal merits of
its position in the prior proceedings,
and whether the factual or legal po-
sitions asserted in the pending pro-
ceeding would have been cognizable
in the previous proceedings. An af-
firmative answer to these questions
raises a rebuttable presumption
that the nonprevailing party partici-
pated in the pending proceeding for
an improper purpose.
As in the case of section
120.57(1)(b)5, improper purpose is a
factual determination for the hear-
ing officer. Consequently, counsel
should present evidence and pro-
posed findings of fact on this issue
before the hearing officer renders a
recommended order. Likewise, evi-
dence and proposed findings of fact
should be submitted as to the rea-
sonable amount of attorney's fees
and costs to be awarded. Once the
hearing officer makes these factual


Administrative Law Section Newsletter


Vol XVNo 1






Vol. XV, No. 1


determinations in a recommended or-
der, the agency having final order
authority must award the attorney's
fees and costs to the prevailing
party, unless the hearing officer's
findings of fact are not supported by
competent substantial evidence.25

C. Conclusion
While the circumstances under
which sections 57.111, 120.57(1)(b)5,
and 120.59(6) can be applied are in-
deed limited in scope, such circum-
stances can and do arise. If attor-
ney's fees and costs are not re-
quested, they will not be spontane-
ously awarded. Therefore, to assure
effective and economical representa-
tion to clients, administrative law-
yers should be aware of these stat-
utes and attempt to take advantage
of them when applicable.


Endnotes:
1 See, e.g., State Rd. Dept. v. Cone Bros.
Contracting Co., 207 So.2d 489 (Fla. 1st DCA
1968).
2 For example, the following provisions of
the Florida Statutes can, under appropriate
circumstances, entitle the prevailing party to
recover attorney's fees and costs incurred in
S an administrative proceeding or subsequent
appeal or enforcement action: 59.46 (appel-
late proceedings); 112.3187(8)(d) and
112.31985(3)(k) (Code of Ethics of Public Offi-
cers and Employees, Whistle Blower's Act);
120.535(6) (agency failure to proceed with
required rulemaking); 120.57(1)(b)10 (appeal
from agency's final order); 120.575 (taxpayer
contest proceedings); 120.69 (circuit court en-
forcement of agency action); 163.3213(8) (ad-
ministrative review of local land development
regulations); 175.391 (municipal firefighters'
pension funds); 185.40 (municipal police offi-
cers retirement trust funds); 213.015(14) (ad-
ministrative actions concerning state tax
assessments, collection, and enforcement proc-
esses); 408.039 (appeals from final orders
involving certificate of need applications);
443.041(2)(b) (appeals from unemployment
compensation decisions); 447.208(3) (career
service employee disputes): 447.503(6)(c)
and 447.504(3) (unfair labor practice dis-
putes); 445.228(1) (circuit court enforcement
of agency final order); 760.10(13) and
760.35 (discriminatory housing practice dis-
putes). Moreover, where discovery under the
Florida Rules of Civil Procedure has been
adopted by the presiding agency's rules, at-
torney's fees and costs are available as a sanc-
tion for failure to provide discovery or for
disputing matters set forth in a request for
admissions. See, Fla. Admin. Code 60Q-
2.019; Fla.R.Civ.P. 1.380. See also, A Profes-
sional Nurse, Inc. v. HRS, 519 So.2d 1061
(Fla. 1st DCA 1988).
3 The Act provides for additional recovery
when the prevailing small business party de-
fends against an agency's appeal of a final


order awarding attorney's fees, or when the
prevailing small business party must resort
to mandamus to enforce such a final order.
See, 57.111(4)(d) and (5), Fla. Stat. The Act
has also been construed to allow recovery for
the fees and costs incurred by the prevailing
small business party in litigating under the
Act. See, e.g., Nordal v. Dept. of Professional
Reg., 12 FALR 1182, 1185 (DOAH 1990); Mal-


colm Lewis Hardy & Aquatic Realty v. Dept.
of Professional Reg., 11 FALR 5174, 5180
(DOAH 1989).
4 See, e.g., Thompson v. HRS, 533 So.2d
840 (Fla. 1st DCA 1988) (state employee is
not a small business party); Dept. of Profes-
sional Reg., Div. of Real Estate v. Toledo Re-
continued...


Fall Fund Raising for

Pat Dore Endowed

Professorship Underway

by Vivan F. Garfein

The Administrative Law Section has pledged to raise $100,000 to
establish an endowed professorship in memory of FSU College of
Law professor, Patricia Ann Dore. State matching funds have been
sought by the College of Law to create a $150,000 endowment to
fund the professorship in perpetuity. The endowment will be used
to support teaching, research and writing in Florida Administrative
Law. We are now beginning our drive to raise the funds needed for
the endowed chair, and are asking for your help.
Patricia Dore served on the law school faculty from 1970 until
her untimely death on January 11, 1992. Pat was a widely known
and highly respected expert on Florida Administrative Law. She
played a key role in the development, enactment and revision of the
Florida Administrative Procedure Act. She also served as a consult-
ant to the Constitutional Revision Commission in 1978, drafting
Article I, Section 23 of the Florida Constitution, commonly known
as the privacy amendment.
The decision to endow a named chair was made not only to honor
Professor Dore's memory, but also to continue her work. The en-
dowment will ensure that teaching and scholarship in the area of
Florida Administrative Law will continue at the FSU College of
Law and be available both to students and to members of all
branches of Florida government. We believe that the wide use of
the APA in state government makes it essential that the law evolve
in a way that reflects good public policy. Good scholarship can
promote this goal and provide a source of information unbiased by
particular interests.
Here's how you can help. Pledge or pay some amount to the Pat
Dore Professorship. Several former students have pledged as much
as $1,000 each! If every member of the section would pledge any-
where from $50 to $250, our goal will be reached. We hope to raise
the necessary funds by April 29, 1994-which would have been
Pat's 50th birthday.
Send your pledge or check to:
FSU College of Law
Dore Endowed Professorship
c/o Development and Alumni Affairs
425 West Jefferson
Tallahassee, Florida 32306-1034
Your contribution is tax deductible. Please join us in establishing
this important professorship in honor of one of Florida's most dis-
tinguished legal scholars.


Administrative Law Section Newsletter






Administrative Law Section New-letter WJ


ATTORNEYS' FEES
from preceding page


alty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989)
(real estate broker's employee is not a small
business party). But see, McAllister v. Dept.
of State, Div. of Licensing, 9 FALR 4064
(DOAH 1987) (polygraph examiner employed
by sheriffs office was a small business party);
Larker v. Dept. of Professional Reg., 12 FALR
4730 (DOAH 1990) (licensee in disciplinary
proceeding was a small business party where
complained of conduct was performed in li-
censee's capacity as a principle of a corpora-
tion and such conduct was outside practice
of profession regulated by agency); S.G. v.
HRS, 14 FALR 1817 (DOAH 1992) (licensee
who was corporation'a.alter ego was entitled
to recovery under the Act).
5 57.111(4)(d)1, Fla. Stat.; Fla. Admin.
Code Rule 60Q-2.035(5)(a)5.
6 See, Gentele v. Dept. of Professional Reg.,
513 So.2d 672 (Fla. 1st DCA 1987).
7 See, 57.111(4)(b), Fla. Stat.; Fla. Ad-
min. Code Rule 60Q-2.035(1). See generally,
Eager v. Florida Keys Aqueduct Authority,
605 So.2d 883 (Fla. 3d DCA 1992) (under
DOAH's 5 day mailing rule, petition for attor-
ney's fees and costs filed 63 days from issu-
ance date of appellate court's mandate was
timely).
s A small business party "prevails" in an
administrative proceeding when: (a) a final
order has been entered in its favor and the
final order has not been reversed on appeal
or the time for seeking judicial review of the
final order has expired; (b) a settlement fa-
vorable to the small business party has been
obtained on a majority of the issues it raised
in the proceeding; or (c) the agency has sought
a voluntary dismissal. See, 57.111(3)(c), Fla.
Stat.


9 Minkes v. Dept. of Professional Reg., 11
FALR 1818 (DOAH 1989), affirmed, 550
So.2d 1175 (Fla. 3d DCA 1989) (statutory
time period is jurisdictional). But see, Mal-
colm Lewis Hardy & Aquatic Realty, Inc., 11
FALR at 5177-80 (applying the doctrine of
equitable tolling); Carl Matthews Construc-
tion School, Inc. v. Dept. of Transportation,
13 FALR 2469 (DOAH 1991) (applying doc-
trine of equitable tolling).
10 Fla. Admin. Code Rule 60Q-2.035(3).
57.111(4)(c), Fla. Stat.; Fla. Admin.
Code Rule 60Q-2.035(5)(a).
12 See, e.g., Dept. of Environmental Reg. v.
Puckett Oil, 577 So.2d 988 (Fla. 1st DCA
1991) (where agency fails to file any response,
hearing officer may properly conclude that
agency has waived its right to respond; how-
ever, hearing officer also has discretion to al-
low agency's late-filed response).
13 Fla. Admin. Code Rule 60Q-2.035(6) and
(7).
14 See, 120.61, Fla. Stat.; Fla. Admin.
Code 60Q-2.020. See also, Ann & Jan Retire-
ment Villa, Inc. v. HRS, 580 So.2d 278,279
(Fla. 4th DCA 1991).
15 See, Corp. of the President of the Church
of Jesus Christ of Latter Day Saints v. St.
Johns River Water Management District, 13
FALR 1014 (DOAH 1991).
16 Corp. of the President, 13 FALR 1019;
High Point of Orlando/ Calton Homes v. Cen-
tral Florida Wetlands Society, Inc., 13 FALR
268 (DOAH 1992).
17 See, e.g., Brevard County Bd. of County
Commissioners v. Sloan Construction Co., 14
FALR 3155 (DOAH 1992).
18 Mercedes Lighting, 560 So.2d at 278. Ac-
cord, Good Samaritan Hospital v. HRS, 582
So.2d 722 (Fla. 4th DCA 1991).
19 Compare, Burke v. Harbor Estates Asso-
ciates, Inc., 591 So.2d 1034 (Fla. 1st DCA
1991) (construing "improper purpose" provi-
sion of section 120.59(6)).


20 Elder v. Cargill Fertilizer, Inc., 15 FALR
2561 (DOAH 1993); Sunrise Community, Inc.
v. HRS, 14 FALR 5162 (HRS 1992); HRS v
WFL, 13 FALR 2976 (HRS 1991).
21 See, Mercedes Lighting, 560 So.2d at 279;
Harvey v. Trans Pac, Inc., 12 FALR 4378
(DER 1990). In some instances, the DOAH
hearing officer will specifically retain
jurisdiction in the recommended order to de-
termine the amount of attorney's fees to be
awarded under section 120.57(1)(b)5. See, Cas-
tor v. Johnson, 12 FALR 2986,3003-3005
(EPC 1990).
22 See, Corp. of the President, 13 FALR
1019; Florida Audobon Society v. South Flor-
ida Water Management District, 13 FALR
4169 (SFWMD 1991).
23 South Florida Water Management Dis-
trict v. Canoe Creek Property Owners Associa-
tion, Inc., 13 FALR 3971, 3987 (SFWMD
1991).
24 "Improper purpose" is defined as partici-
pation in a section 120.57(1) administrative
proceeding "primarily to harass or to cause
unnecessary delay or for frivolous purpose or
to needlessly increase the cost of licensing or
securing the approval of an activity."
120.59(6)(e)1, Fla. Stat.
25 Burke, 591 So.2d at 1037.
Mr. Caldevilla is an associate attor-
ney with the law firm of de la Parte
& Gilbert, P.A. in Tampa, Florida,
where his practice includes provid-
ing representation in administrative,
environmental, eminent domain, and
appellate proceedings. He received
his B.A. in 1984 from the University
of South Florida and his J.D., with
honors, in 1986 from Florida State
University.


APA Task Force Convenes

by Sally Bond Mann, Staff Attorney
Select Committee on Agency Rules and Procedures


Over the summer, the House of
Representative's Select Committee
on Agency Rules and Administrative
Procedures met with APA-savvy prac-
titioners (including agency counsel
and private sector attorneys), law pro-
fessors, an appellate judge and leg-
islative staff to review and make re-
commendations for the revision of
Chapter 120, Florida Statutes (the
Administrative Procedures Act).
This "APA Task Force" was subdi-
vided into the following three work-
ing areas:
Group 1-Creation of a Summary
Procedure Within Chapter 120
Group 2-Revisions to the Rule-
making Process


Group 3-Legislative Oversight
and Standards of Judicial Review
While drafts of proposed modifica-
tions to Chapter 120 will not be avail-
able until later this fall (in time for
legislative committee meetings), gen-
eral consensus has been reached by
the members of each group as fol-
lows:
Group 1 (Summary Proce-
dure): The issue addressed is the
perceived need for an expedited
and less costly method by which
agency final action can be chal-
lenged and heard by an independ-
ent hearing officer. Participants
are exploring creation of a three-


tiered process to replace the cur-
rent 120.57(1)(b). The new sum-
mary procedure would be manda-
tory for (as-yet undetermined) cate-
gories of cases, perhaps those
with lower limits of penalty liabil-
ity like small claims court
jurisdiction, and would be a no-
discovery process with an inde-
pendent hearing officer conduct-
ing the final hearing either in per-
son or by telephone conference
call, if all parties agree. The pro-
cess would be similar to the Ameri-
can Arbitration Association
model, with the hearing officer is-
suing a recommended order and
the agency retaining final order


--


Administrative Iaw Sctrtinn NeWCIPttClr


VT, Yl1 XTVN 1






Vol. XVNo. 1


Administrative Law Section Newsletter


authority. The shortened proce-
dure would also be available to
all other petitioners, with an opt-
out provision allowing the parties
to move more complicated cases
into the extended formal process
of the existing 120.57(1)(b).

Group 2 (Rulemaking Pro-
cess): In the interest of streamlin-
ing and clarifying the rulemaking
process, this group is exploring a
proposal to shift the time for fil-
ing a challenge to a proposed rule
under 120.54(4). While current
law requires that a challenge to
a proposed rule be filed within 21
days of publication of the pro-
posed text of the rule, the pro-
posal under consideration would
allow the challenge to be made
within 21 days of an agency's fil-
ing the final text for adoption
with the Secretary of State's of-
fice. This change would eliminate
the need to file a rule challenge


petition until the final text of a
rule is available. The proposal is
designed to assure that resources
expended in challenging a pro-
posed rule are focused on the fi-
nal text of the rule and not on a
preliminary form of the rule.
Greater emphasis on the resolu-
tion of disputes in the less formal
legislative-type public hearing seg-
ment of the rulemaking process
might also result from this pro-
posal. Another area of interest to
the group is the content and qual-
ity of the rulemaking record.
Several members of the group ex-
pressed interest in a proposal
which would require that agen-
cies respond to public comment as
a part of the rulemaking record.
Finally, the group is reviewing
the recently amended economic im-
pact statement provisions of the
APA. The timeframes provided in
the statute for preparation of an
EIS and the usefulness of these


statements is being discussed.

Group 3 (Legislative Over-
sight and Judicial Review):
The areas considered by the
group include establishing uni-
form standards of judicial review
and providing more effective leg-
islative oversight of agency rule
promulgation. The discussion has
been free-flowing and far-reach-
ing but little consensus has been
obtained thus far on specific pro-
posals. Items discussed include
the deference which agencies
should have before DOAH, the
use of hearsay evidence, and the
difference between policy forma-
tion and adjudication of indi-
vidual rights. Oversight discus-
sion has related to the role of
JAPC, indexing of final orders,
the creation of an ombudsman pro-
gram for citizens, and the useful-
ness of the FAW.


Administrative Law Section

Final Statement of Operations, 1992-93 and

Budget, 1993-94

1009.01 1qQ92-Q.q 1993-94


REVENUE
Dues
Dues Retained by Bar
Net Dues

Videotape Sales
Audiotape Sales
CLE Courses
Admin. Law Conference
Interest

TOTAL REVENUE


Budget Actual Budget Meeting Travel
CLE Speakers
Committees
$15,200 $16,360 $16,000 Council Meetings
7,600 8,180 8,000 Bar Annual Meeting
$7,600 $8,180 $8,000 Admin. Law Conference
Pat Dore Memorial
$100 $205 $500 Awards
200 945 1,000 Hurricane Relief Manual
1,925 3,169 1,150 Legislative Reception
12,000 Council of Sections
2240 2245 1500 Operating Reserve
224 24 10 Miscellaneous
$24,065 $ 4 $12,150 FAX Processing
$24,065 $14,744 $12,150 Staff Travel


EXPENSES
Postage
Printing
Office Expenses
Newsletter
Membership
Photocopying
Officer Travel


$850
320
500
2,500
500
160
2,300


$1,120 $850
129 350
500
1,511 3,000
687 800
104 325
2,544 2,500


TOTAL EXPENSES

BEGINNING FUND
BALANCE
PLUS REVENUES
LESS EXPENSES
ENDING FUND BALANCE


$51,643 $30,122 $14,382


$34,455

24,065
51,643
$6,877


$40,154

14,744
30,122
$24,776


$16,943

12,150
14,382
$14,711


All travel and office expense payments are in accordance with
Standing Board Policy 5.23. Travel expenses for other than
members or Bar staff may be made if in accordance with SBP
5.23(e) (5) (h), available from Bar headquarters upon request.


The section has elected to reimburse CLE speakers at the
section's cosponsored courses of expenses in excess of the CLE
policy limit of $50 per day for meals. The excess expenses
reimbursed by the section are without limit.


500
100
500
400
1,200
17,500
20,000
350
1,000

300
1,577
100
150
836


348
356
1,154

20,000
304
1,000

300


131
434


500
100
500
400
1,400


400

500
300
1,307

250
400


-U


Vol. XV, No. 1







The Florida Bar
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