Author: Elf
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Field Notes on the Establishment of Administrative Child Support
In simple terms, just like Tolstoy said all happy families are the same, but each unhappy family is unhappy in its own way, the same can be said for child support cases. There are a lot of different opinions and disagreements when it comes to child support. In Florida, parents can go to court or…
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Civil Regulatory Enforcement in Florida’s Water Management Districts: Consistency Within Shifting Tides
Environmental regulation has been around for a long time and hasn’t changed much. In Florida, there are different agencies that enforce environmental laws, including the Department of Environmental Protection, water management districts, and local governments. These agencies have the power to enforce laws and rules related to the environment, and they can use a variety…
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Legislative Rule Ratification: Lessons from the First Four Years
In 2010, Florida passed a law that required the legislature to approve any new agency rules that would have a big economic impact or cost a lot to enforce. Since then, the House of Representatives set up a process for agencies to submit these rules for approval. If a rule meets the criteria, it has…
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Standing in Rule Challenges After Office of Insurance Regulation & Financial Services Commission v. Secure Enterprises, LLC
Last fall, a court made a decision in a case that seemed to change the rules for who can challenge a law in Florida. The decision said that a company couldn’t challenge a rule about insurance forms. After that, in another case, a judge wrote a long document explaining how the rules for who can…
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Medical Negligence Arbitration Proceedings Before Florida’s Division of Administrative Hearings
In the 1980s, medical malpractice insurance premiums became really expensive because of the high costs of medical care and big jury verdicts. To fix this, lawmakers in Florida passed a law that requires a presuit investigation process and arbitration for all medical malpractice claims. This means that people with claims have to do an informal…
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Fee Awards in Administrative Proceedings, Part I
This article is about how attorneys can recover their fees in administrative proceedings. The law allows attorneys to seek fees when the other party or their attorney files a claim that they knew wasn’t supported by the facts or the law, or if they file claims just to cause delays. The law also says that…
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Fee Awards in Administrative Proceedings, Part II
This article discusses how attorneys’ fees can be recovered in administrative proceedings under Florida laws. There is a law called F.S. §57.111, which allows for the recovery of fees and costs if there is unreasonable government action. This law is similar to a federal law called the Equal Access to Justice Act. The law used…
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Escaping the Labyrinth: A Practical Guide to Rulemaking
In Greek mythology, the labyrinth was a complex structure holding the Minotaur. Navigating rulemaking can be just as tricky. Here’s a guide to the process: 1. Notice of Rule Development: First step in making a new rule or changing an existing one. Agencies have to publish a notice in the Florida Administrative Register, explaining the…
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Final Order Indexing in the Electronic Age: The 2015 Amendment to F.S. §120.53 Finally Fulfills the Purpose of the Original Statute 40 Years Later
In 1974, Florida passed a law that required state agencies to list and index all of their final orders. But many agencies didn’t follow this rule. In 2015, the law was changed to make it easier for people to access these orders online. Now, all state agencies have to use a specific website to list…
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Petitions for Review: Getting the Final Word on Nonfinal Agency Action
In the case of Murciano, the Agency for Health Care Administration and an administrative law judge disagreed over certain findings of fact. The agency filed a petition with the First District Court of Appeal, but the court suggested it would have been more appropriate to seek judicial review through a different process. Ultimately, the court…
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Student Conduct Hearings in a University Setting: Just or Unjust?
When a state university student is facing discipline, the U.S. Supreme Court says the amount of fairness they deserve depends on how serious the allegations are, how likely it is that mistakes could be made, and how much extra work it would cause for the school. But the standard isn’t very high. A student’s disciplinary…
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The 2016 Amendments to the APA: Say Goodbye to United Wisconsin and More
During the 2016 session, the Florida Legislature passed several bills that affect how administrative rules are challenged and reviewed. One bill, House Bill 183, allows people to challenge rules when they are being punished by a state agency. This bill also speeds up the process for getting a hearing when applying for temporary special events…
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2016 Amendments to the Public Records Act: Relief for Government Contractors from Predatory Requests, But Not for Public Agencies
The Public Records Act in Florida allows citizens to request and access government records. Government agencies must provide access to these records, but there are some exceptions. If an agency refuses to provide the records, they can be penalized and the person requesting the records can be awarded their legal fees. There are a lot…
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Regulating Regulators: Active Supervision of State Regulatory Boards in the Wake of North Carolina State Board of Dental Examiners v. FTC
State regulation and licensure started with professions like law and medicine, but now it applies to a wide range of jobs, from hairdressers to florists. The goal is to protect the public, but sometimes the people in charge of these regulations might make decisions that benefit themselves and not the public. A recent court case…
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The Florida Homeowners Construction Recovery Fund: How to Collect from an Uncollectible Contractor
A lawyer is suing a healthcare company for not providing proper care to a patient who got an infection. The lawyer wants the company to pay for the patient’s medical bills and for the harm caused. The Florida Homeowners’ Construction Recovery Fund was set up to help homeowners who have been cheated by licensed contractors.…
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An Introduction to Negotiated Rulemaking
Administrative rulemaking is a process where the government and public work together to create new rules. Usually, people can give their opinions on the rules at meetings and in writing. This is called the traditional rulemaking process. Sometimes, the traditional process doesn’t work well for certain rules, so the government has a different way to…
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Saying Goodbye to Chevron and Auer? New Developments in the Agency Deference Doctrine
The agency deference doctrine is a rule in administrative law that says courts have to respect how agencies understand laws and rules. But some courts and lawmakers have been saying this rule isn’t good anymore and have been not following it in some cases. Some people are even trying to make a law that would…
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Invoking the Rule in Administrative Proceedings: Florida Industrial Power Users Group v. Art Graham
The Florida Evidence Code has a rule called witness sequestration, which allows a party to ask the court to keep a witness out of the courtroom so they don’t hear other testimonies. This is to make sure the witness’s testimony is fair and not influenced by what others have said. This rule comes from a…
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What to Except When You’re Excepting: Practice Pointers for Filing Effective Exceptions to Recommended Orders
When lawyers deal with administrative law, they may have to file exceptions if they disagree with a recommended decision. This is important because it gives them a chance to convince the agency to change the decision and helps if they need to appeal later on. It’s a unique process in administrative law and something that…
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DOAH: Bringing Impartiality and Fairness to Administrative Litigation Since 1975
DOAH was created in 1975 to settle disputes between Florida state agencies and the people they regulate. It was formed because there was a lot of distrust of executive power in Florida and agencies often acted without published policies. This led to inconsistency and made it difficult for people to challenge agency decisions. DOAH was…
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Lesser Known Aspects of the APA
In Florida, the Division of Administrative Hearings (DOAH) is the main player in the administrative procedure process. Other important agencies to know about are the Administration Commission, the Joint Administrative Procedures Committee (JAPC), and the Department of State. These agencies follow the rules of the Florida Administrative Procedure Act (APA). This article is not a…
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Constitutional Rulemaking: What Happens When the APA Doesn’t Apply?
Recent changes to Florida’s Constitution and the Administrative Procedure Act have raised questions about whether agencies can make rules outside of the normal procedures, and how people can challenge those rules. The Department of Health has been given the power to make rules about medical marijuana, and they argue that they can do this outside…
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A Primer on Emergency Rulemaking
Recently, there has been a lot of attention on emergency rules and the challenges to those rules, especially after the rules put in place by the Department of Elder Affairs and Agency for Health Care Administration following Hurricane Irma. Emergency rules are not used often by agencies, but they have become more common in recent…
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The Points of Entry for Rule Challenges Post Florida Pulp & Paper
Before 1996, the Florida Administrative Procedures Act (APA) allowed challenges to proposed rules to be filed only 21 days after they were published. In 1996, the APA was changed to allow challenges to be filed at three additional times: 10 days after a public hearing, 20 days after a statement of estimated regulatory costs (SERC)…