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 statement is when someone asks a state agency to give an interpretation of a law or rule as it applies to their specific situation. It’s a way to solve a problem or get answers about how a law or rule applies. Declaratory statements are legal tools used to determine a person’s rights and duties under a law or rule. They are similar to declaratory judgments in civil practice, but there are some differences. Some agencies and boards use them as a way to find out if a proposed action is legal and to get a binding decision from the agency. They can be important for getting a quick and binding interpretation of a law or rule that a particular agency is in charge of, especially when there is no previous court decision on the issue. A declaratory statement in administrative law is similar to a declaratory judgment in court. It is used to resolve a real issue in controversy involving a person. In Florida, the use of declaratory statements has been governed by law since 1974. However, there are also legal requirements and restrictions imposed by court decisions on the use of declaratory statements. In simple terms, a law professor believes that agencies should make it easier for people to request declaratory statements, which are like legal rulings. The rules for this process are being looked at by a government commission, but it’s not clear if they will make it easier to get declaratory statements. The law says that anyone who is significantly affected by a law or rule can ask for a declaratory statement about how it applies to their situation. If someone has a question about how a law or rule applies to their situation, they can ask a government agency for a “declaratory statement” to get an official answer. The agency has to respond within 90 days. This response is the final decision of the agency and can be reviewed by a court if the person disagrees with it. A public hearing may be held on these petitions, and they can be used to determine the need for a state license, interpret the scope of a contractor’s license, or apply sales taxes to leases or construction contracts. Certain situations, like when a neighboring property owner disagrees or when a contract is voided, have been found to be proper reasons for an agency to deny a request for a legal decision. Additionally, if there is no current doubt or controversy, or if the issue is about past behavior, the agency may also deny the request. This also applies when the issue involves interpreting a constitutional provision or challenging a decision made by the agency. If you want to ask for a declaratory statement from the government, you need to show how it applies to your specific situation. You also have to prove that you will be significantly affected by the decision. Trade associations can also ask for a declaratory statement if it affects a lot of their members and is related to their general interests. In a case where a person asked a board about an office lease, but the lease had already been changed by the time the board looked at the request, the board said no. You can only ask for a declaratory statement if it affects you directly, not if it’s about someone else. And you can only ask about things that will happen in the future, not things that have already happened. A declaratory statement is a way for someone to ask a government agency to interpret a law or rule that affects them. To ask for one, you need to file a petition with the agency that makes the rules. Your petition needs to include your name and contact information, as well as the specific law or rule you want interpreted and how it affects you. Then, you or your lawyer signs and dates it. But you can’t ask for a declaratory statement if there’s already a court case about the same issue, or if it’s about a broad policy or rule that the agency should handle differently. When someone wants to ask a government agency for a declaratory statement, they have to follow specific rules. They have to publish a notice in a government publication and may have to go to a hearing. The person asking for the statement has to provide enough information and proof. The agency will assume that what the person says is true, unless someone else proves otherwise. The agency can also use their knowledge of the law and rules to make a decision. Before asking for a declaratory statement, it’s a good idea to look at ones the agency has already given on similar topics. These can usually be found on the agency’s website or by asking for them from the agency clerk. If you want to ask a government agency for something, make sure you talk to a lawyer first and be prepared to withdraw your request if the agency doesn’t agree with you. If you want to get involved in someone else’s request, you have to ask at least 20 days before the final decision. Some new rules might change this, but until then, the agency should wait to make a decision until everyone who wants to be involved has a chance to ask. The current rules say that someone who wants to make a statement can object to another person trying to join the case within seven days. There’s a new rule being considered that says certain people can join the case without asking first. So, if you’re the one making the statement, it might be better not to name any other people in your statement, so they can’t join without asking first and give you a chance to object. If you want to challenge a decision made by a state agency, you can ask for a declaratory statement. This is a formal decision by the agency that can be challenged in court. If you are affected by the decision, you can ask to intervene in the case and be bound by the outcome. If you are not affected, you don’t have to follow the decision. It’s important to research past decisions before asking for a declaratory statement. This can be helpful if you’re worried the agency might take action against you based on their rules. More people are using petitions for declaratory statements to quickly and affordably get decisions from regulators. This is a good thing and should be encouraged. There have been some changes to the rules to make this process easier, and there are some good articles to read about it. Overall, this is a helpful tool for getting decisions from regulators. The Construction Industry Licensing Board received 23 petitions in 2010-2011 and 33 petitions in 2011-2012. Overall, all the boards under DBPR received 104 petitions in 2010-2011 and 77 petitions in 2011-2012. In 1996, a word was removed from the rules, allowing for more petitions to be filed. Changes to the rules were published in the November 27, 2012 issue of Florida Administrative Register. Some petitions have been approved by the agency, while also starting the process of making new rules on the same topic. The State Board of Administration wants to change the rules for filing petitions with agencies, including adding the requirement to include an email address. Some agency lawyers think agencies should be able to reject petitions that don’t meet the requirements without scheduling a hearing. A recent law allows agencies to change the word “petition” to “motion” when it comes to interveners. There’s also a proposed new filing date for certain rules. Florida Optometric Association v. Department of Professional Regulation, Board of Opticians was a case where an agency’s denial of intervention was overturned because they did not consider the imminent substantial injury in fact and substantial injury of the type or nature that the statutory provisions were designed to protect. The agency’s denial was based on the standards set in Agrico Chemical Company v. Department of Environmental Protection, but it was overturned based on the standards set forth in Florida Home Builders Association and Florida Medical Association v. Department of Professional Regulation.
The Florida Department of Business and Professional Regulation had only two appeals involving declaratory statements filed in the past three and a half years, as per the author’s personal communications with the current appellate counsel, Gar Chisenhall.
Ameriloss Public Adjusting Corporation v. In Re Matter of Clyde Lightbourn and Department of Health and Rehabilitative Services v. Barr are also important cases in this area.
Fred R. Dudley is a lawyer with the law firm of Holland & Knight, LLP, in the Tallahassee office, specializing in representing contractors in licensing and disciplinary matters. He is board certified by The Florida Bar in construction law and serves on various committees within the Bar. This column is submitted on behalf of the Administrative Law Section, Judge Foster Scott Boyd, chair, and Paul Amundsen, editor. This means that lawyers in Florida should work to serve the public and make the justice system better. They should also study and improve the law.
Source: https://www.floridabar.org/the-florida-bar-journal/the-importance-and-proper-use-of-administrative-declaratory-statements/
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