When the
substantial interests of any person have been adversely affected
by state regulatory action the law provides a means of review.
This applies to disciplinary measures, licensure application
denials and a wide range of other governmental activities. The
agency is required to provide written notice of its action and
of the affected party’s right to a timely hearing. The
failure to request a hearing within the time described in the
notice may result in the forfeiture of this important right.
There are two hearing
procedures available under Section 120.57 of the Florida Administrative
Procedure Act. The first applies to situations in which there
are no disputed issues of “material fact”. It is
intended to resolve interpretations or applications of the law
based upon essentially agreed upon facts. Review is conducted
by the agency itself and not an independent judge. In this proceeding,
the agency’s initial findings may be accepted by the licensee
subject to mitigation, or the agency may be requested to reconsider
or modify its interpretation of the law. Factual disputes are
not open to consideration and the opportunity for a truly impartial
determination may be limited. Once this procedure has been elected,
the opportunity to pursue an alternative proceeding in the Division
of Administrative Hearings may be lost. Accordingly, it is often
inadvisable to pursue this procedure when there are significant
disputed issues of material fact.
The second hearing
procedure allows for an evidentiary hearing in the Division
of Administrative Hearings before an independent Administrative
Law Judge. This process is similar to a non-jury trial. There
is a right to present witnesses and other forms of evidence,
to cross examine the agency’s witnesses and contest the
agency’s evidence and legal positions.
Florida’s Administrative
Procedure Act is admirable in its effort to create a level playing
field between the state’s administrative agencies and
the individuals and businesses subject to its regulation. Suffice
to say, the decision to pursue an administrative hearing or
other kinds of relief under the Act should be made carefully
and on an informed basis.
Note: The decision
to elect any administrative remedy must necessarily turn upon
the particular facts and circumstances of each case. This writing
is intended for general informational purposes only. Any decision
to pursue or not to pursue a particular administrative remedy
should be made up appropriate consultation with counsel.
