Category: Florida BAR article
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More APA Reform: The 1999 Amendments to Florida’s Administrative Procedure Act
In short, the article talks about how John Doe is suing a big company for not paying him fairly. He hired the law firm Smith & Associates to help him in the court case. The company is denying the allegations and says they treated John fairly. The case is still ongoing. In 1996, Florida made…
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The Scarecrow in McDonald’s Farm: A Fairy Tale About Administrative Law
Judge Manry believes there is a big problem with the way nonrule policy is defined. The law says agency policy is either policy-by-rule or nonrule policy. Policy-by-rule is policy that applies to everyone, while nonrule policy is policy that doesn’t apply to everyone. However, the courts have a different definition and say that nonrule policy…
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Who Goes First and What Is Competent, Substantial Evidence in a Proposed Rule Challenge? A Commentar
The Administrative Procedures Act (APA) was changed in 1996, shifting the burden of proof in challenges to agency rules. Before the change, the party challenging a rule had to prove all issues, but now the agency has to prove the rule is not invalid. Recent court cases have provided some clarity on this issue, but…
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Agency Discipline Proceedings-The Preponderance of Clear and Convincing Evidence
In legal cases, the burden of proof depends on the seriousness of the situation. In civil cases, the standard is usually “preponderance of the evidence,” where both parties share the burden. For more serious accusations, like fraud, the evidence must be “clear and convincing.” In criminal cases, the state must prove guilt “beyond a reasonable…
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Choice of Forum in Florida’s Administrative and Circuit Courts: A Review of the Doctrine of Exhaustion of Administrative Remedies
When a client has been affected by a government agency, the decision of whether to take the case to court or to an administrative hearing is important. The choice can impact the outcome for the client. In Florida, the law generally requires that a person must first try to resolve the issue through an administrative…
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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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Writing and Challenging Emergency Orders, Part II
A legal firm is being investigated for their business practices, and an attorney is being accused of mishandling cases. The investigation is ongoing, and it is important for the legal system to ensure that everyone is following the rules. Challenging an emergency order involves proving that it doesn’t meet the requirements set by the law,…
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Writing and Challenging Emergency Orders, Part I
If someone has a professional license, like for a doctor or lawyer, they should have a fair process before it can be taken away. But in Florida, there are cases where the government can take action right away if there’s a serious danger to the public. I’ve worked on writing these emergency orders for the…
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The Importance and Proper Use of Administrative Declaratory Statements
If an attorney is familiar with going to court to get a ruling on a law, they may not know about using administrative proceedings to get a ruling from a state agency. This article talks about how to use these administrative proceedings effectively, and recent rule changes proposed by the Administrative Law Section. A declaratory…
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Advancing the Legal Profession with Typography
When lawyers use a PC to write documents, it’s not just about the words they’re using, but also about how the document looks. It’s important to present documents professionally, and as lawyers, we should pay attention to the way the text is presented. While some suggestions in this article might not be allowed in court,…
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Practice Tips for Private Attorneys New to Administrative Law
In the past 10 years, I’ve worked with many different private attorneys who represent state agencies. Some of these attorneys are very familiar with administrative law, while others are new to it. For those new to administrative law, it’s important to understand the basics to avoid making big mistakes that could hurt their cases and…
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Practice Pointers for Administrative Hearings: Use of Exhibits
This article is about using exhibits in administrative hearings. When preparing for a hearing, lawyers should think about the facts they need to prove and what exhibits they will need to prove those facts. It’s important to plan ahead and not wait until the last minute to gather exhibits. Lawyers should also talk to their…
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New Limitations on Access to Public Records and Meetings in Government Contracting
Florida’s Constitution guarantees an open and transparent government, meaning that the public has the right to access government records and attend meetings. However, there are some exemptions that make certain meetings and records confidential. Recently, Florida amended the Public Records Act and the Sunshine Law to expand these exemptions, especially regarding information related to government…
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The 2010 Amendments to the APA: Legislature Overrides Veto of Law to Require Legislative Ratification of Million Dollar Rules
A legal firm called Smith & Associates is representing a client named John Doe in a court case against a big company. The company’s attorney, Jane Smith, is trying to delay the trial, but our lawyer, Sarah Johnson, is confident we will win. The case is about a product that caused harm, and we believe…
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Practice Pointers for Administrative Hearings Examination of Witnesses
This article gives advice for lawyers who are representing clients in hearings with judges at the Division of Administrative Hearings (DOAH). It focuses on how to question witnesses effectively. The article says that it’s important to prepare well before questioning a witness and suggests making a list of questions to ask. This will help the…
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Fighting for Public Dollars: Procedures and Pitfalls of Protesting Government Bid Awards
Florida is in a recession and many businesses are struggling to find work. Some businesses are now looking for projects with the government. Since there’s a lot of competition for these projects, it’s important for businesses to follow the rules and deadlines. There will probably be more arguments over who gets the projects, and the…
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The 2008 Amendments to the APA: The Open Government Act
In 2007, the Florida Legislature wanted to change some rules about how state agencies make their policies. The governor vetoed the changes because he was worried about unintended problems. So, in 2008, the legislature made some adjustments to the bill and passed it. The changes were meant to make sure that agencies follow the proper…
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Agency Exercise of Legislative Power and the Role of ALJ Independence in Responsible Agency Policymaking
Dorothy found herself in a strange kingdom called Administrative Law. She learned that there are three main parts to the kingdom – the legislative estate makes the laws, the judicial estate interprets the laws, and the executive estate enforces the laws. There used to be a fourth part, but it’s not as important now. Dorothy…
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The Appealing Nature of Local Code Enforcement Board Decisions
When it comes to challenging decisions made by local government agencies, not all agencies are treated the same. For some agencies, you have to file a petition for certiorari to challenge their decisions, but for others, you can file a direct appeal. This distinction is often overlooked by lawyers and judges, leading to improper judicial…
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Practice Pointers for Administrative Hearings
Hey there! If you’re going to be in a trial-like hearing, here are some important tips for you. First, start gathering evidence right away, because things move fast in these hearings. Also, when you file a motion, make sure to say whether anyone is opposing it. If not, the judge can make a decision without…
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What Price Frivolity? Section 57.105 Comes to the APA
The APA has rules that allow for attorneys’ fees to be awarded in certain situations, such as if someone files unnecessary or frivolous paperwork, or if they don’t follow discovery rules. The law also allows small businesses to get money back for attorneys’ fees if they have to defend themselves in a legal proceeding that…
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Florida Administrative Procedures Act Remedies Survey
The Florida Administrative Procedure Act (APA) sets out the procedures for challenging government agency actions. The purpose is to increase public access to agency activities. In practice, there are many different ways to challenge agency actions, and there are different remedies available. The APA has been adjusted over the years to balance public access with…
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The 21-Day Battle in Administrative Actions
The Administration Commission updated the rules for administrative procedures, making it easier for people to access and understand the rules. They made changes to accommodate things like faxing documents and putting information on a website. They also made changes to how notices are given and how cases are handled in certain situations. Additionally, they included…
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The Finality of Recommended Orders
The findings of fact are the conclusions reached by a judge after considering all the evidence, deciding who to believe, and making reasonable inferences. If there is enough evidence to support the findings, they cannot be changed. However, if there were problems with how the hearing was conducted, the findings could be rejected. This might…