How are we to maintain the control over the administrative process compelled by our constitutional democracy, while at the same time allowing agen-cies sufficient authority and freedom t
THREE MODELS OF ADMINISTRATION
Federal administrative law has evolved through three distinct models of administration: the classical model, which dominated from the inception of American administrative law until the 1930s; the procedural model, that prevailed for nearly fifty years following that period; and the current evaluative model, which now holds supremacy While these models are associated with specific historical periods, their development did not exclude the coexistence of other approaches, but rather highlights the dominant frameworks during different eras.
The Classical Model
The classical model 21 focuses on power Legal analysis centers on who exercises what substantive powers, and on the source of those
Both the House and Senate select committees conducted hearings on rulemaking processes and the exercise of delegated authority by agencies Despite five APA bills passing through either chamber, only one minor bill was ultimately enacted into law (Sally Bond Mann, "Legislative Reform of the Administrative Procedure Act: A Tale of Two Committees," 68 Fla B.J July/Aug 1994).
17 See infra notes 146-61 and accompanying text.
This article discusses Florida HB 237 and SB 1440 from 1994, providing insights into legislative perspectives on the issue It aims to serve as a helpful Traveler’s Guide, offering clarity for both supporters and opponents of these laws, and emphasizes that reform pathways can be navigated in multiple directions depending on the desired outcome.
Elements of various regulatory models can be identified throughout the history of administrative law Historically, the "policing model" of regulation, prevalent before the New Deal, was gradually replaced by the "associational model," reflecting evolving approaches to governance Despite ongoing promotion of these competing regulatory frameworks, neither achieved complete dominance, highlighting the persistent tension and diversity in administrative law development (Robert L Rabin, "Federal Regulation in Historical Perspective," 38 Stanford Law Review 1189, 1986).
21 This period of administrative law also has been described as "constitutional fundamen-
The guide emphasizes that governmental power is a dangerous commodity, requiring careful distribution and control through doctrines like separation of powers, checks and balances, and standards attached to grants of power Rooted in the political philosophies of Locke, Blackstone, and Montesquieu, this classical model underpins the U.S Constitution, reflecting a fundamental belief in limiting state authority to prevent tyranny.
The classical model of administrative law dominated from the founding of the Republic until the New Deal, characterized by a congressional government with minimal administrative intervention and reliance on common law principles During the first century, Congress mainly passed laws and oversaw their enforcement, reflecting limited government involvement The passage of the Interstate Commerce Act in 1887 marked a turning point, as it delegated legislative, executive, and judicial powers to a single entity, signaling a departure from traditional structures Although this shift challenged the non-delegation doctrine, the classical model continued to influence administrative law practices The Interstate Commerce Act also established clear standards for agency jurisdiction, reflecting evolving regulatory frameworks.
Historically, administrative law has been founded on the principle of limiting government power to safeguard private autonomy This foundational goal aims to ensure that governmental authority does not infringe upon individual rights and freedoms By constraining administrative actions, the law promotes accountability and protects citizens from overreach Understanding this historical context is essential for comprehending current administrative legal frameworks and their role in balancing state authority with personal liberty.
23 Farina, supra note I, at 488-95; see generally James Freedman, CRisis AND LEGITIMACY:
THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 15-20 (1978)
24 THEODORE LowI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES, 94 (2d ed 1979)
27 Smythe, supra note 13, at 454 (remarking that the full political motivation for this regu- lation is still not clear).
28 Richard Stewart, Madison's Nightmare, 57 U CHI L REV 335, 337 (1990).
Many commentators argue that a true nondelegation doctrine has never been firmly established at the federal level Johnny C Burris contends in his 1986 Administrative Law review that the nondelegation doctrine remains largely unrecognized in practice, while Farina highlights that numerous scholars may have underestimated the doctrine's influence and significance in administrative law.
Farina describes the evolution of nondelegation theory as a transition from a focus on dividing governmental power to emphasizing its restraint This shift highlights the increasing importance of limiting executive authority to prevent overreach Historically, nondelegation principles have evolved to ensure that regulatory agencies operate within their designated boundaries, balancing effective governance with constitutional safeguards Understanding this progression is essential for appreciating current debates on the scope and limits of delegated legislative authority.
The Florida State University Law Review highlights that legislative efforts, such as the Federal Railway Safety Appliances Act of 1893, involved extensive discussions and consensus on key policy issues before enactment Historically, there has been a strong foundation of common law and state regulatory initiatives aimed at clarifying statutory terms related to safety standards The legislation itself incorporated specific safety rules to ensure clear regulatory guidance and effective oversight in the transportation sector.
The Supreme Court did not strike down the new legislation but maintained concerns over standards and limiting agency power through strict statutory interpretation and by invalidating certain agency actions The classical judicial model emphasizes a narrow, active role for courts, ensuring agency actions remain within their statutory authority while generally adopting a deferential review approach This model asserts that agencies can only operate within the boundaries defined by congressional statutes, with courts playing a key role in interpreting these limits Ultimately, the classical approach's focus on narrow statutory interpretation and substantive limitations has been a significant contribution to administrative law, reinforcing the importance of judicial oversight in maintaining agency accountability.
The Procedural Model
The procedural model" focuses on process Legal analysis centers on the way in which administrative decisions are reached The model promotes application of expertise 9 and procedural safeguards 4° in de-
Lowi highlights that the Transportation Act of 1920 granted broader and more flexible powers compared to earlier legislation, marking a significant shift in regulatory authority He notes that this Act introduced "control over markets" nearly 15 years before similar grants were made through other legislation, underscoring its importance in the evolution of transportation regulation.
33 Peter Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 COLUM L REV 427,428 (1989)
In Federal Trade Commission v Gratz (1920), the courts established a legal approach where agency actions are deemed illegal if they are ultra vires or conflict with the statutory purpose, without declaring the delegation statutes unconstitutional This approach has influenced many other areas of administrative law, emphasizing judicial review of agency actions rather than the constitutionality of the statutes themselves (Johnny C Burris, "Administrative Law," 12 Nova Law Review, 299-303).
37 RICHARD J PIERCE JR ET AL., ADmNISTRATIV LAW AND PROCESS, 112 (1992)
38 A generally similar classification is made by Davis, supra note 14, at 2; Shapiro & Levy, supra note 1, at 397 The procedural model has also been termed "traditional," Stewart, supra note 14, at 1671
39 For a discussion of the New Deal conception of the expert agency, see Sargentich, supra note 3, at 411-12.
40 See generally JAMES LANDIS, THE ADwiSTRATivE PRocESS (1938); Davis, supra note
The procedural model emphasizes decision-making based on fair processes rather than external limitations, highlighting concepts such as adequate notice, impartiality, fair hearing, due process, and agency-established standards It rests on two key premises: first, that government questions are subject to scientific rationality, meaning there are correct answers; and second, that the method of reaching decisions influences their accuracy Rooted in "legal process" scholarship, this model asserts that courts are better suited to review procedural adherence by agencies, while agencies possess the necessary expertise to evaluate the substance of administrative decisions.
From the 1930s to the early 1980s, the procedural model dominated at the federal level, reflecting a significant shift in government’s role following the Great Depression Public support moved away from trusting market autonomy toward endorsing extensive government regulation of economic and social activities, marking what Richard Stewart called "the New Deal constitutional revolution." This era saw Congress establishing vast administrative bureaucracies through the creation of regulatory and social welfare programs, often delegating broad mandates rather than detailed instructions to agencies Unlike earlier statutes like the Railway Safety Act, the National Traffic and Motor Vehicle Safety Act of 1966 exemplifies this shift, as Congress provided general directives to agencies without debating specific implementation issues, emphasizing a focus on broad safety objectives over procedural details.
During this era, the courts abandoned much of the classical model's jurisprudence Not only was substantive due process repudiated," but
41 See McGarity, supra note 30, at 403 (discussion of the influence of the concept of "ad- ministrative science" and procedural reform reaction).
43 Shapiro & Levy, supra note 1, at 407 n.89; see also Ethyl Corp v Environmental Pro- tection Agency, 541 F.2d I (D.C Cir.) (en banc), cert denied, 426 U.S 941 (1976)
48 New State Ice Co v Liebmann, 285 U.S 262 (1932), was one of the last major eco-
The courts shifted their focus away from nondelegation issues, expanding their interpretation of agency enabling legislation and rejecting traditional dual federalism principles They emphasized procedural safeguards, such as hearings, before agencies made decisions, prompting Congress to enact the Administrative Procedure Act in 1946 to ensure due process in agency discretion This act served as a counterbalance to broad delegation of authority and introduced procedural protections, with courts increasingly remanding cases for agencies to conduct additional procedures beyond statutory requirements Simultaneously, courts avoided reviewing the substantive merits of agency decisions, limiting their role to overseeing legal processes rather than evaluating the substance, especially in cases related to statutory authority and substantive due process.
Robert McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Rebu- rial, 1962 Sup CT REv 34.
49 Farina, supra note 1, at 484; Bernard Schwartz, "Apotheosis of Mediocrity?" The Rehnquist Court and Administrative Law, 46 ADMIN L REv 141, 149 (1994).
Shapiro and Levy highlight that the Schecter Poultry Corp v United States case in 1935 was one of the earliest instances suggesting the need for procedural safeguards in administrative law Notably, this case is one of the rare examples where a statute was invalidated on nondelegation grounds, underscoring the importance of procedural protections to prevent overreach by administrative agencies.
54 For a review of the history leading up to the adoption of the federal APA, see Paul Verkuil, The Emerging Concept of Administrative Procedure, 78 CoLusL L REV 258, 264-79
(1978) and McGarity, supra note 30, at 403-07.
55 In later years, the District of Columbia Circuit was particularly inclined to interpret language of section 553 (the informal rulemaking section) of the APA in an expansive way See
Portland Cement Ass'n v Ruckelshaus, 486 F.2d 375, 394 (D.C Cir 1973), cert denied, 417
U.S 921 (1974); International Harvester Co v Ruckelshaus, 478 F.2d 615 (D.C Cir 1973);
Automotive Parts and Accessories Ass'n v Boyd, 407 F.2d 330, 338 (D.C Cir 1968) In other cases, the court would even require adjudicatory rulemaking procedures not statutorily required. Ethyl Corp v Environmental Protection Agency, 541 F.2d 1, 67 (D.C Cir 1976), cert denied,
426 U.S 941 (1976); Mobil Oil Corp v FPC, 483 F.2d 1238, 1253 (D.C Cir 1973); see also
Antonin Scalia, Vermont Yankee: The APA, the D.C Circuit, and the Supreme Court, 1987
The procedural model generally grants agencies significant deference on questions of law due to their expertise and familiarity with the subject matter However, during this period, some cases indicated a shift towards a less deferential approach For example, in National Labor Relations Bd v Hearst Publications (1944), the Court acknowledged the agency's expertise with the statute, suggesting a degree of deference Conversely, in Packard Motor Car Co v National Labor Relations Bd (1947), the Court appeared to diminish that deference, reflecting evolving judicial attitudes towards agency review This shift underscores ongoing debates about the appropriate level of judicial oversight for agency decisions, as discussed by Stephen Breyer in his analysis of judicial review of law and policy.
The traveler’s guide emphasizes that the judicial role within the procedural model is limited, focusing primarily on closely scrutinizing the procedures involved in administrative decision-making However, courts remain highly deferential to agencies, respecting their expertise and authority in policy implementation This balance ensures procedural fairness while maintaining the agency’s discretion in administrative processes.
The Evaluative Model
THE FLORIDA EXPERIENCE
Although Florida's legal framework has not directly mirrored the federal pattern, the classical and procedural models offer valuable insights for analysis These models help explain many provisions of the 1974 Act, especially when comparing the House and Senate versions, which were unified by a conference committee to form the new APA Additionally, Florida courts' administrative law decisions are heavily influenced by the procedural model rather than the classical one The major House and Senate bills regulating rulemaking during the 1994 Regular Session reflect dissatisfaction with the dominant procedural approach established by courts, leading to proposed solutions aimed at reforming the existing system.
In 1994, efforts aimed to revitalize Florida's classical APA components, emphasizing the importance of traditional administrative procedures Some initiatives focused on strengthening procedural safeguards to ensure fair and transparent decision-making processes Others appeared to shift Florida toward an evaluative model, prioritizing outcome-based assessments within administrative procedures.
The 1974 Innovations
In the early 1970s, Florida considered a wholesale revision of its Administrative Procedure Act, while the federal government had already embraced the established procedural model Despite the U.S Supreme Court's abandonment of the nondelegation doctrine and the classical model, Florida remained reluctant to follow suit The Florida Supreme Court reaffirmed its commitment to the principles of the classical administrative model shortly before this period, indicating a cautious approach to procedural reforms.
In the Legislature, there existed a much publicized concern with
The term "phantom government" reflects a perception that the current federal system is unstable and likely to change It suggests that federal courts should adopt a stricter review process for legal issues and a more lenient approach when evaluating policy matters Notably, the Florida Legislature in 1974 adopted this allocation of deference, aligning with this approach to judicial review.
69 See supra text accompanying notes 38-57
70 See Sarasota County v Barg, 302 So 2d 737 (Fla 1974); Conner v Joe Hatton, Inc.,
216 So 2d 209 (Fla 1968); Dickinson v State, 227 So 2d 36 (Fla 1969); Delta Truck Brokers, Inc v King, 142 So 2d 273 (Fla 1962).
Certainly! Here’s a coherent paragraph summarizing the key points with SEO considerations:Recent articles, such as Raymond Mariotti's "Senator Lewis Shadowing Phantoms" (Palm Beach Post-Times, Nov 24, 1974) and John Van Gieson's "Bill Tightening State Rules Clears" (Tallahassee Democrat, Apr 19, 1974), provide valuable insights into legislative developments Notably, Van Gieson's report offers anecdotal evidence explaining the origins of specific provisions within the Act, highlighting the nuanced process behind policy formation These sources collectively shed light on important legislative actions and their underlying motivations.
Rep Curtis Kiser, R-Dunedin, criticized state bureaucrats for inventing unauthorized powers to justify their regulations, raising concerns about overreach He highlighted that the subcommittee responsible for drafting HB 2672 was discussing the constitutional and statutory authority behind these rules, indicating potential overstep of legal boundaries Kiser emphasized the importance of ensuring that regulatory powers are properly grounded in law to maintain governmental accountability and protect citizens' rights.
Florida's Florida Administrative Procedure Act (APA) addressed concerns about agencies acting beyond their delegated authority by adopting a unique legislative approach While many legislative questions were rooted in the classical model, Florida's APA also incorporated the procedural model, demonstrating an innovative blend of both frameworks This legislation, specifically chapter 74-310, uniquely combines traditional and modern administrative law principles, highlighting Florida’s comprehensive effort to improve agency accountability and procedural fairness.
The development of the new Administrative Procedure Act began in 1973, focusing on redefining "rule" and "agency" from the 1961 Act Although House Bill 2145 was approved by both the House and Senate, it was vetoed by the Governor, prompting continued hearings and collaboration with the Florida Law Revision Council Led by Arthur England, Jr., the project aimed to revise chapter 120 extensively, emphasizing fairness and expanded procedural rights aligned with federal administrative law standards An ad hoc task force, formed by the American Bar Association’s Center for Administrative Justice, prepared an initial draft that highlighted the importance of due process and procedural fairness, addressing concerns about state official authority in rule-making.
The APA bill, which was passed by the House, explicitly declared that "No agency has inherent rulemaking authority," emphasizing limited agency powers Representative Kiser, a member of the conference committee, contributed to this language, ensuring its inclusion in the final version of the bill This provision is now codified as subsection 120.54(13) of the Florida Statutes (Supp 1974), reinforcing statutory restrictions on agency rulemaking authority.
In 1975, the Chairman of the Rulemaking and Public Information Committee of the Administrative Conference of the United States highlighted that Florida's legislative reform of administrative procedures was based on 1970s legal insights rather than outdated 1940s frameworks According to Cornelius B Kennedy, this comprehensive overhaul reflects a modern approach aligned with current administrative law developments.
This article highlights three key innovations: the establishment of a legislative review committee, the implementation of administrative rule challenges, and the introduction of compartmentalized judicial review For a more comprehensive discussion of these innovations and their impact on judicial review, readers are encouraged to refer to Stephen T Maher's insightful analysis in "We're No Angels."
The article "Rulemaking and Judicial Review in Florida" (18 FLA ST U L REV 767-84, 1991) argues that the Act successfully provides opportunities for stakeholders to present evidence and argument in the rulemaking process However, it also critiques that courts have largely overlooked issues related to the lengthy procedures and restrictions on the scope of judicial review, potentially limiting effective oversight of administrative actions.
74 Brief History of Administrative Procedure Reform, July 1, 1974 (legislative staff docu- ment) (available at Fla Dep't of State, Div of Archives, ser 333, carton 18, Tallahassee Fla.) [hereinafter Brief History].
The ad hoc committee draft focused on expanding the procedures for agency decision-making and rulemaking, aiming to provide agencies with greater flexibility while enhancing the public's ability to participate and be heard in the process.
The Traveler's Guide highlights several key innovations, including mandating full transparency of all agency decisions, enhancing public participation, and reducing distinctions between quasi-legislative and quasi-judicial actions Additionally, it emphasizes the importance of compartmentalizing judicial review to improve efficiency After multiple public hearings and revisions by the Council and subcommittee, a fifth draft was adopted with minimal changes, serving as the foundation for both House Bill 2672 and Senate Bill 892.
The draft of the Basic Law Revision Council needed to pass through the legislative process, including committee reviews and conference committees in each house The Senate notably influenced many provisions that reflected the traditional model of administrative law Once the bill was enacted, several amendments were added to the original draft, such as subsection 120.54(12), which clarified that agencies cannot establish penalties for rule violations unless explicitly authorized by the Legislature Additionally, subsection 120.54(13) confirmed that agencies do not possess inherent rule-making authority Paragraph 120.54(10)(a) tasked the Administrative Procedures Committee with reviewing proposed rules to ensure they align with statutory authority, serving as a legislative check Subsection 120.54(3) authorized hearing officers to assess whether proposed rules are valid exercises of delegated legislative power or represent invalid delegation, reinforcing oversight in administrative rulemaking.
77 Some of these procedural innovations are discussed in Maher, supra note 73
78 Brief History, supra note 74 Committee Substitute for Senate Bill 892, as amended by the conference committee, was to become chapter 74-310, the Administrative Procedure Act.
80 FLA STAT § 120.54(12) (Supp 1974); see also FLA CoNssT art 1, § 18
81 FLA STAT § 120.54(13) (Supp 1974) See supra note 71 for the likely source of this declaration.
82 FLA STAT § 120.54(10)(a) (Supp 1974) As the APA was originally enacted, this was the only criterion for committee review of rules Compare sections 120.545(1)(a) through (m) in the current Act.
Under Florida Statute § 120.54(3) (Supp 1974), a rule is considered invalid if it exceeds the agency’s authority granted by its enabling statute Historically, this was the primary basis for challenging the validity of administrative rules, emphasizing the importance of agency power limits Experts such as Patricia Dore highlight that rulemaking innovations are scrutinized to ensure they comply with statutory authority, reflecting the critical role of legal boundaries in administrative procedures.
Ch 10, p 15, note 55 (Supplemented by Johnny C Burris, 1993) The phrase "invalid exercise of delegated legislative authority" was later defined in the Act more broadly to codify court decisions, ch 87-385, 1987 Fla Laws.
Under Florida Statutes § 120.54(3) (Supp 1974), a specific ground was initially established, but it was later deemed unconstitutional because it permitted hearing officers to declare statutes invalid This legal ruling was confirmed in the case Department of Administration (Division of Personnel) v Department of Administration (Division of Admin Hearings), 326 So 2d.
Deference and Standards of Review
Standards of review determine the level of deference that courts give to agency decisions, playing a crucial role in ensuring the validity of administrative actions within our tripartite government system Courts use specific standards of review to assess agency actions, which are essential for the proper functioning of administrative law The judicial review provisions, particularly in Florida, are vital for the effectiveness of the 1974 Act, as they rely on the judiciary’s cooperation to uphold or challenge agency decisions The Administrative Procedure Act (APA) enhances clarity by categorizing judicial review into separate issues of procedure, law, fact, and policy, each with its own standard of review, thereby improving the consistency and comprehensiveness of the review process.
The 1974 Act mandates that courts do not defer to agency procedures during review; instead, they must independently examine the procedures themselves If a material error is found that could have compromised the fairness or correctness of the proceeding, the court is required to remand the case for further review Importantly, the court's decision does not depend on whether the agency identified or believed an error occurred, only on whether a significant procedural mistake may have affected the outcome The statute explicitly emphasizes the court's authority to make independent findings, ensuring objective oversight of agency actions.
187 (Fla 1st DCA 1976) The Legislature repealed this language in chapter 76-131, 1976 Fla. Laws.
Complete deference in administrative reviews means that the agency's decision is automatically upheld without review, effectively denying any independent scrutiny Conversely, no deference signifies a completely independent review process where the court disregards the agency's decision entirely The spectrum of deference levels can be complex and confusing, as highlighted by John C Bilzor et al in their discussion on state judicial review of administrative actions.
88 Schwartz, supra note 49, at 160, wrote, "In the end, perhaps, it all comes down to judicial review."
89 L Harold Levinson, A Comparison of Florida Administrative Practice Under the Old and the New Administrative Procedure Acts, 3 FLA ST U L REv 72, 80 (1975)
90 FLA STAT §§ 120.68(7)-(12)(Supp 1974) See also Maher, supra note 73, at 792-98
19941 TRA VELER'S GUIDE tion that any deference should be shown to the agency's conclusions. Questions of law are treated in a similarly direct fashion under the
Under the 1974 Act, courts are required to evaluate the actual language of the law when reviewing agency decisions If a court finds that an agency has misinterpreted the law and a correct interpretation would lead to a different course of action, it must set aside, modify, or remand the case Importantly, the court is expected to make an independent legal determination rather than rely solely on the agency’s interpretation The statute clarifies that an agency’s interpretation does not need to be clearly erroneous to be rejected, and there is no indication that deference should be granted to the agency’s legal interpretation.
Agency decisions based on factual findings require deference, as courts are instructed not to substitute their judgment for that of the agency regarding evidence weight If a proper hearing under section 120.57, Florida Statutes, has not been held and the action's validity hinges on disputed facts, the court must order a hearing While reviewing the record, the court will only set aside or remand the case if the agency's factual finding lacks competent substantial evidence supporting it.
Finally, the Act compels virtually complete deference on matters of discretion 97 The Act first restates that the exercise of discretion must
While Florida's new provisions on judicial review aimed to provide clearer guidelines than the 1961 Model Administrative Procedure Act, there is limited legislative history explaining the exact intended scope of judicial review The 1981 Model State Administrative Procedure Act revised the approach of earlier statutes, aligning more closely with Florida by requiring courts to make separate rulings on each issue Notably, Florida's language regarding questions of law is similar to section 5-116(4) of the 1981 Model Act, which states that an agency has erroneously interpreted or applied the law According to the 1981 Model Act's reporter, section 5-116 clearly authorizes courts to substitute their judgment for agencies’ on questions of law when determining the validity of agency rules.
ARTHUR BONFIELD, STATE ADMINISTRATIVE RULE MAKING 580 (1986)
94 The "clearly erroneous" standard requires substantial deference to be given to the deci- sion being reviewed See Bilzor, supra note 86, at 725
96 Id § 120.68(10) In Bilzor, supra note 86, at 727, substantial evidence is described in the following manner:
An agency decision or action supported by substantial evidence must be upheld, even if the review court would have reached a different conclusion when considering the matter de novo The existence of multiple possible inferences from the evidence does not undermine the validity of the agency’s decision, as long as it is supported by substantial evidence This principle ensures that administrative decisions are respectful of agency expertise and procedural fairness, emphasizing the importance of substantial evidence in upholding agency determinations.
See also Adam Smith Enters Inc v Department of Envtl Reg., 553 So 2d 1260, 1270 n.15 (Fla 1st DCA 1989).
The article emphasizes that courts must operate within their lawful authority, allowing for remand if there are inconsistencies, but ultimately clarifies that courts should not substitute their judgment for that of the agency on discretionary matters.
Florida's Administrative Procedure Act establishes clear standards for reviewing agency decisions by emphasizing strict scrutiny of legal and procedural aspects, while applying less strict review regarding the decision's correctness and minimal oversight on its prudence The Act does not attempt to distinguish between questions of procedure, law, fact, and policy; instead, it prescribes appropriate review standards once such determinations are made This framework ensures that agencies are held accountable for lawful decision-making while allowing some flexibility in evaluating the wisdom of their actions.
The Act introduces an important innovation by treating quasi-executive, quasi-legislative, and quasi-judicial actions uniformly The APA mandates that all agency actions are reviewed under the same statutory provisions, ensuring a consistent approach While the statute separates review procedures into categories such as law, fact, and policy, it does not differentiate standards of review based on the specific form of agency action Despite variations in the records reviewed depending on the action, the standards of review remain identical across all types.
The Act clearly defines judicial standards of review but does not specify the standards that hearing officers should use when reviewing rules Notably, provisions allowing hearing officers to challenge rules were not included in the original Law Revision Council draft, and no new language has been added to establish such standards Consequently, hearing officers lack any statutory guidelines for their review process Although a more precise definition of "invalid exercise of delegated legislative authority" was later incorporated as section 120.52(8), no standards of review were introduced at that time, as the focus was solely on codifying judicial grounds for invalidating statutes.
The primary goal was to ensure all agency actions are covered, regardless of how courts previously characterized them, by applying consistent procedures whenever significant interests are impacted This legislative intent aimed to change previous case outcomes, such as Bay Nat'l Bank and Trust Co v Dickinson, which limited judicial review due to the nature of the agency action.
102 Compare the text of the Reporters's Final Draft, March 1, 1974, contained in Appendix
C of England & Levinson, supra note 83, with the text of FLA STAT § 120.68 (Supp 1974).
104 " See Maher, supra note 73, at 816 n.225 Also as a result of the addition of DOAH rule challenges, subsection 120.68(5), Florida Statutes, contained no indication of what the record
Decisions of the Courts
The Act's initial goal of integrating procedural and classical models was never fully realized, as courts predominantly relied on the federal administrative law system This approach gradually weakened the Act’s provisions aimed at limiting agency powers, aligning with the prevailing federal procedural model If this trend persists, future decisions may further erode the Act’s safeguards designed to prevent courts from substituting their judgment on agency discretion, reflecting the dominant federal evaluative model.
This article briefly explores how federal administrative law has been adopted by Florida courts, emphasizing the importance of standards of review in understanding this process The decentralization of judicial review and the consistent treatment of quasi-legislative and quasi-judicial actions highlight the federalization of administrative law However, Florida courts have not fully implemented the Act’s innovative provisions on review compartmentalization and uniform treatment, illustrating ongoing challenges in aligning state practices with federal models.
Following the passage of the APA, there was an initial transition period where courts adjusted to the new approach to administrative law Many cases during this period closely adhered to the APA's provisions on judicial review, especially in decisions by the Florida Supreme Court involving procedure, law, fact, and policy A notable issue was whether the review was of the rule itself or the hearing officer's order; this question persisted until the 1989 case, Adam Smith Enters Inc v Department of Envtl Reg., which clarified that it is the hearing officer's order, not the rule, that is subject to review under the APA.
In Keystone Water Co Inc v Bevis, 313 So 2d 724 (Fla 1975), the court examined the interpretation of Florida Statutes section 367.12(2)(b) regarding utility rate base calculations, disagreeing with the Florida Public Service Commission’s interpretation and remanding the case The court emphasized the importance of statutory interpretation in utility regulation, citing section 120.68(9) of the Florida Statutes, and did not defer to the Commission’s technical expertise in rate making.
In Florida v Mayo (1976), a key legal question centered on whether there was adequate factual support for a temporary rate increase and if such an increase could be granted after a preliminary utility presentation without cross-examination The Florida court determined it could not assess whether the rate award was supported by competent and substantial evidence, highlighting the importance of thorough evidentiary review in rate case decisions under Florida Statutes §120.68(10).
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After this hopeful beginning, things began to go awry Agrico
Chemical Co v Department of Environmental Reg., 10, involved the consolidation of three rule challenge cases and is significant for its stance on standards of review The hearing officer's order indicated that petitioners challenging a rule on grounds of arbitrariness or unreasonableness must prove the rule is entirely unfounded and beyond reason, a standard that is inconsistent with the APA’s language The court noted that the challenge was primarily due to the rule's lack of an adequate factual basis but complicated matters by referencing a 1937 U.S Supreme Court decision, Thompson v Consolidated Gas Corp Instead of directly applying Florida statutes like section 120.68(10), the court relied on Thompson to assess validity based on whether the regulations reasonably related to the statute's purpose, citing outdated authority such as Florida Beverage Corp v Wynne, a pre-1974 rule challenge case, highlighting the court’s reliance on outdated legal standards.
The empowering provision of the statute authorizes agencies to develop necessary rules and regulations to implement the Act The validity of these regulations is maintained as long as they are reasonably connected to the statute's purpose and are not arbitrary or capricious, ensuring their legitimacy and proper enforcement.
Wynne based this standard on a previous federal case, emphasizing that decisions must be grounded in substantial evidence and thorough findings The court noted that the Commission's orders lacked adequate findings, rendering them arbitrary and capricious Due to a procedural error that compromised the fairness and accuracy of the interim rate proceeding, the court cited section 120.68(8) and remanded the case for further review.
In Florida Real Estate Comm'n v Webb (1978), the Florida Supreme Court clarified that penalties imposed by agencies are matters of discretion within the permissible statutory range and cannot be reduced by courts unless agency findings are partially reversed The court emphasized that Section 120.68(12) and the APA’s provisions on judicial review offer more detailed and precise guidelines, promoting more consistent and predictable outcomes in agency decision-making.
The Traveler's Guide highlights the confusion caused by relying on legal cases unrelated to Florida's Administrative Procedure Act (APA) Specifically, the federal case cited focused on whether a rule exceeded statutory authority, not on reviewing factual issues within a rule This distinction underscores the importance of applying the correct legal standards when evaluating administrative rules in Florida.
The Supreme Court of Florida embraced the test used in General Telephone Co of Florida v Florida Public, adopting it as the standard of review for rulemaking This decision marked a significant shift, emphasizing the court’s preference for this test, which had previously gone largely unnoticed By incorporating this standard, the court aimed to ensure a consistent and rigorous review process for rulemaking cases The adoption of this test underscores its importance in shaping regulatory review procedures within the state.
Service Commission."' In adopting the test, the Florida Supreme Court explained:
Our review of rulemaking processes, as a quasi-legislative proceeding, is more limited compared to quasi-judicial proceedings The standard of review must differ because the typical evidence-based criteria used in judicial reviews, like competent and substantial evidence, do not apply when the record is not created in an adjudicatory setting or when no factual issues are decided.
The Act provides the same standard of review for both quasi-legislative and quasi-judicial proceedings, leaving no reference to the provisions of chapter 120 This is because the initial part of the court's test pertains to statutory authority, while the latter addresses factual issues Consequently, cases like Agrico and General Telephone influence not only the independent review standard under § 120.68(9) regarding statutory authority but also the competent substantial evidence test under § 120.68(10) concerning the factual basis of rules.
112 Under the federal APA, "arbitrary and capricious" is the standard courts use when reviewing agency factual determinations in proceedings such as informal rulemaking S U.S.C § 706(2)(A) See Bonfield, supra note 11, at 576
The validity of a regulation issued under the Truth in Lending Act is determined by whether the agency stayed within its delegated authority, with courts referencing established legal standards When a statute empowers an agency to "make such rules and regulations as may be necessary to carry out this Act," courts have upheld regulations that are "reasonably related to the purposes of the enabling legislation." This ensures that agencies do not exceed their authority and that regulations serve the objectives of the law.
114 See supra text accompanying note 66 Admittedly, the development of federal law has tended to merge and blur these standards As discussed in the text accompanying notes 89 and
90, one of the main purposes of the Florida Act was to clarify review by more strictly separating reviewable issues.
117 See supra text accompanying notes 99-100
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The First District Court of Appeal revisited judicial review of administrative rulemaking in State Department of Health and Rehabilitative Services v Framat Realty, Inc., emphasizing the importance of proper interpretation of statutory language and agency procedures The case involved an appeal challenging an agency’s rule that defined "acre" by excluding paved areas, roads, and waters, contrary to the statutory use of the term The hearing officer found that the word "acre" should be understood in its usual sense, but the district court reversed, analyzing the agency’s rulemaking process—including published notices, workshops, interest group involvement, and public hearings—and underscored the role of public policy in facilitating rulemaking Instead of applying the standard review outlined in § 120.68(9), the court proposed its own test for evaluating agency rule interpretations.
The 1994 Proposals
CONCLUSIONS
The Florida Legislature is increasingly focused on gaining greater control over agency rulemaking, reflecting dissatisfaction with the current balance between agency authority, control, and efficiency Over the past twenty years, Florida's efforts to address how to effectively regulate agency power have been deemed unsuccessful, especially as the procedural model established by Florida courts has fallen short In response, the Legislature sought to improve oversight through various legislative measures during the 1994 session, proposing bills that incorporate different conceptual approaches—strengthening existing procedural controls, introducing elements from the classical model, and integrating provisions based on the evaluative model to enhance oversight of agency rulemaking.
There is a general consensus that government agencies are not exercising their delegated authority properly, but the specific issues remain unclear The Legislature should clarify the precise problems or combination of problems it aims to address to ensure effective solutions Once these issues are identified, various models can be employed to select appropriate remedies, as different models target different types of problems.
To ensure sound agency decision-making, it's essential to implement provisions based on the appropriate evaluative, procedural, or classical models When agency decisions lack scientific support or involve improper weighing of factors, strengthening the process with the evaluative model is crucial If decisions are made without adequate public notice or participation, procedural model provisions can help promote transparency and fairness Additionally, if agency actions deviate from legislative political consensus or exceed delegated powers, adopting classical model safeguards ensures decisions remain within authorized boundaries.
The recent update to the economic impact statement has led to uncertainty regarding changes in regulatory analysis, as it replaced the previous, broader statement Although the new statement appears more focused and specific, it also demands additional detailed information, making the overall effect on regulatory assessment unclear.
162 See supra text accompanying note 1
163 See supra discussion in notes 147-62.
Legislative amendments must be carefully supported by robust review standards to ensure clarity and consistency Maintaining distinct standards of review for issues like procedure, law, fact, or policy is advisable, even though classification remains complex and not strictly defined Flexible language within these standards allows judges to adapt without unnecessary constraints Establishing a consistent framework for review helps agencies, petitioners, hearing officers, and courts understand which standards apply before decisions are made, enabling targeted evidence and argumentation Uniformity in standards is paramount, and the most effective way to achieve this is for the legislature to select and codify a specific standard within the Florida Statutes, providing clarity and predictability for all involved parties.
History shows that courts often do not follow statutory standards, making it more effective to clarify the standards of review used by hearing officers Establishing clear legislative guidance on the deference to be given to various grounds of invalidity and agency determinations can improve consistency Once these standards are in place, the Act can be precisely adjusted in future years to address specific issues related to agency exercise of delegated authority, without impacting other areas that do not require change.
The ongoing debate in Florida about administrative law is shaped by the state's experiences and the successes or failures of federal administrative frameworks; understanding these models provides valuable insights into the difficult policy choices ahead The fundamental philosophical basis of Florida’s "administrative constitution" influences not only the authority granted to administrative agencies but also impacts the separation of powers among the state's three branches of government While the decision to amend the Administrative Procedure Act (APA) is ultimately legislative, input from all government branches and citizens is crucial in shaping the reform process Ultimately, everyone involved is likely to navigate shared challenges on the path toward effective administrative law reform in Florida.