[*] Lawyer and legal educator. The author is a frequent commentator on developments relating to the Florida Administrative Procedure Act and on technology and the law issues. Return to text.

[1] "Glitch bills" are bills filed the year after major legislation is enacted so that mistakes made in that legislation can be corrected. Return to text.

[2] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (codified in scattered sections of FLA. STAT. ch. 120 (Supp. 1996)); see also F. Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 FLA. ST. U. L. REV. 309, 309 (1997). This 1996 revision was the most significant change to the APA since its adoption in 1974. See Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies, 24 FLA. ST. U. L. REV. 283, 283 (1997). Return to text.

[3] FLA. STAT. ch. 120 (1997). Return to text.

[4] See Fla. SB 1066 (1997). Return to text.

[5] See Fla. S. Comm. on Gov't Reform & Oversight, SB 1066 (1997) Staff Analysis 1 (Mar. 25, 1997) (on file with comm.) [hereinafter SB 1066 Staff Analysis]. Return to text.

[6] In 1991, to address unclear agency policies, the Legislature amended the APA to require agencies to adopt their policies as rules and to better index their orders. See Patricia A. Dore, Florida Limits Policy Development Through Administrative Adjudication and Requires Indexing and Availability of Agency Orders, 19 FLA. ST. U. L. REV. 437, 439 (1991). In September 1992, the Senate Select Committee on Governmental Reform was formed to "focus on 'improving the effectiveness and efficiency of state government.'" Sally Bond Mann, Reforming the APA: Adventures in the Labyrinth, 22 FLA. ST. U. L. REV. 307, 317 (1994) (quoting a letter from Senator Pat Thomas, Pres. Pro Tempore, to Senator Charles William, Chair, Senate Select Committee (Sept. 14, 1993) (on file with author)). In November 1992, the House Select Committee on Agency Rules and Administrative Procedures formed to "'encourage greater citizen input' in the rulemaking process and to investigate whether agencies 'stray from legislative intent' in the promulgation and enforcement of rules." Id. at 309. Nothing passed in 1993 or 1994, but APA reform was the focus of much attention as many proposals to amend the APA were introduced. See Stephen T. Maher, Getting Into the Act, 22 FLA. ST. U. L. REV. 277, 278 (1994). In 1995, the Legislature passed a bill amending the APA, but the Governor vetoed it. See Rossi, supra note 2, at 287-88. In 1996, the Legislature passed a major revision of the APA, and the Governor signed it. See id. at 288. Return to text.

[7] Interest groups such as the Florida Chamber of Commerce, who espouse keen constituent interest in administrative procedure reform, assume that concern about government red tape equates to an interest in administrative procedure reform. Committee hearings held over the last several years to consider administrative law reform indicate that complaints usually concern substantive decisions made by agencies with which they disagree, not the process used to reach those decisions. See Maher, supra note 6, at 282; see also David Gluckman, 1994 APA Legislation: The History, the Reasons, the Results, 22 FLA. ST. U. L. REV. 345, 347 (1994) (explaining that "[t]here was a strong sense that this committee was formed to correct a number of preconceived problems, many of which either did not exist or had little to do with the APA"). Return to text.

[8] David Gluckman has suggested that the "implementation of the Growth Management Act in the rural counties was the strongest single trigger of interest in the APA." Gluckman, supra note 7, at 349. I agree that substantive concerns like these have tended to drive interest in amending the APA. See Maher, supra note 6, at 278-79. Return to text.

[9] The APA reflects the chosen balance between maintaining efficiency in government and assuring that agency decisions are made fairly and accurately and are recognized as legitimate. See Stephen T. Maher, Administrative Procedure Act Amendments: The 1991 and 1992 Amendments to the Florida Administrative Procedure Act, 20 FLA. ST. U. L. REV. 367, 367 (1992). Return to text.

[10] See Maher, supra note 6, at 284-87. Return to text.

[11] The signing ceremony was held on the steps of the old Capitol, complete with speeches and a crowd of well-wishers. Return to text.

[12] See discussion infra Part II.C.1. Return to text.

[13] For a brief history of these unsuccessful efforts, see Stephen T. Maher, Five Easy Pieces on Changing the Florida APA: An Introduction to the Symposium, 22 FLA. ST. U. L. REV. 243 (1994); see also Florida Administrative Procedure Act Symposium, 22 FLA. ST. U. L. REV. 243 (1994). Return to text.

[14] Capital Circle is Tallahassee's equivalent to the famous Washington Beltway, of inside and outside the Beltway fame. Return to text.

[15] This reflection is based upon personal experience, after telling people for over 20 years that I practice administrative law and teach administrative procedure. The most common response is "What kind of work does that involve?" Return to text.

[16] Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Rulemaking Revolution or Counter-Revolution? 49 ADMIN. L. REV. 345, 358 (1997). Return to text.

[17] See Maher, supra note 9, at 371. Professor Dore also shared this view. See Dore, supra note 6, at 437; Stephen T. Maher, Patricia Ann Dore and the Florida Administrative Procedure Act, 19 FLA. ST. U. L. REV. 951, 954 (1992). Required rulemaking furthers the original intent of the Act to "cut down on the private knowledge of the policies which shape agency decisions which is now possessed only by small groups of specialists and the agencies' staffs." See FLA. ADMIN. PRACTICE at 6 (1979) (App. C) [hereinafter PRACTICE MANUAL]. Return to text.

[18] The APA was adopted in 1974. In 1976, the Florida Supreme Court took a strong position on the need to adopt policies as rules in Straughn v. O'Riordan, 338 So. 2d 832, 834 (Fla. 1976) (finding that the unpromulgated standards in that case were rules under the Act and as such were not enforceable against O'Riordan in the absence of publication in the manner required by law). The First District, apparently following this reasoning, then decided Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977), which invalidated agency policies because they had not been adopted as rules. However, beginning with McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), the First District Court began moving away from this approach, and by the time the bill that became section 120.353 was under consideration, invalidation of unpromulgated policy had become a rarity. Return to text.

[19] See Dore, supra note 6, at 437; Maher, supra note 9, at 373. Return to text.

[20] See Maher, supra note 9, at 373. In McDonald v. Department of Banking and Finance, the court excepted "incipient agency policy" from the rulemaking requirements of the Act. McDonald, 346 So. 2d at 581. Return to text.

[21] See Maher, supra note 9, at 374. Return to text.

[22] See id. at 391. Return to text.

[23] See NLRB v. Bell Aerospace Co., 416 U.S. 267, 267 (1974) (holding that agencies are generally free to decide whether to proceed by rule or order). Return to text.

[24] The Supreme Court's decision in Straughn v. O'Riordan, 338 So. 2d 832 (Fla. 1976), not only took a hard line on the duty to promulgate policy as written, published rules by invalidating policy that had not been properly promulgated, it signaled that was the original intent of the Act in an interesting way. Justice England, who wrote the opinion, had been the Reporter for the draft APA before serving on the Court. Return to text.

[25] See FLA. STAT. 120.535 (1995). Return to text.

[26] Professor Rossi agrees that the counterrevolution he describes is executive-led. See Rossi, supra note 2, at 288. Return to text.

[27] The requirement that agencies adopt their policies as written, published rules fetters agency discretion by limiting the power of agencies to act in ad hoc, inconsistent, and arbitrary ways towards regulated interests in similar factual circumstances. Rules also help fetter agency discretion because they facilitate legislative oversight of agency interpretations of their legislative mandates, because those interpretations are published as rules and are thus easily available for legislative review. Return to text.

[28] The Florida APA defines a rule functionally, so that an unpublished "agency statement of general applicability that implements, interprets, or prescribes law or policy" is, by definition, still a rule. FLA. STAT. 120.52(15) (1997). Return to text.

[29] See Stephen T. Maher, The Death of Rules: How Politics is Suffocating Florida, 8 ST. THOMAS L. REV. 313, 331 (1996). Return to text.

[30] See Stephen T. Maher, We're No Angels: Rulemaking and Judicial Review in Florida, 18 FLA. ST. U. L. REV. 767, 790 n.113 (1991). Return to text.

[31] Section 120.52(8), Florida Statutes, defines this phrase as meaning agency "action which goes beyond the powers, functions, and duties delegated by the Legislature." It includes situations where the agency has materially failed to follow rulemaking procedures or requirements; where the agency has exceeded its grant of rulemaking authority; where the rule enlarges, modifies, or contravenes the law implemented; where the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; where the rule is arbitrary and capricious; where the rule is not supported by competent substantial evidence; or where the rule imposes regulatory costs which could be reduced by less costly alternatives that substantially accomplish statutory objectives. See FLA. STAT. 120.52(8) (1997). Return to text.

[32] See id. 120.56 (establishing rule challenge procedures). Return to text.

[33] The rule challenge remedy was strengthened in the 1996 amendments in several ways. First, it was strengthened by allowing proposed rule challenges to be filed later in the rulemaking process. See id. 120.56(2). Special interests had complained that while the proposed rule challenge was powerful, it was costly to use because a challenge had to be filed within 21 days of the publication of the proposed rule and before the public hearing. See id. 120.54(3)(a) (1995). The 1996 amendments changed the time of filing, allowing such challenges to be filed within 10 days after the final public hearing, among other alternatives. See id. 120.56(2)(a) (1997). This may save the expense of actually filing a challenge while retaining the power of the challenge, because it allows regulated interests the opportunity to threaten to file a proposed rule challenge at the public hearing if their requested changes are not made. Because the proposed rule challenge is often used as a bargaining tool, this change has increased the real power of the remedy. Second, the 1996 amendments imposed upon the agency the burden of proving that a proposed rule is not an invalid exercise of delegated legislative authority when challenged. See id. 120.56(2)(a). Third, the adoption of the so-called map tack provision, which requires that agencies be able to show specific statutory rulemaking authority for the rules they adopt, promises to make rule challenges easier to win. See id. 120.536(1); see, e.g., Calder Race Course, Inc. v. Department of Bus. and Prof'l Reg., DOAH Case No. 96-0343RP (June 13, 1997) (finding that the fact that a proposed rule is reasonably related to an agency's duties is no longer sufficient, and striking down the proposed rule). Return to text.

[34] Rossi, supra note 2, at 304. Return to text.

[35] Id. Return to text.

[36] For example, I observed in 1992 that "[o]ur statutory rulemaking procedure provides more opportunities to prevent agency encroachment on legislative prerogatives than does any other administrative procedure act." Maher, supra note 9, at 368. Return to text.

[37] See Maher, supra note 29, at 345. Return to text.

[38] See Maher, supra note 9, at 408-18 (criticizing the Governor's agenda and concluding that it represented no more than "a round up of the usual suspects"). Return to text.

[39] See Gluckman, supra note 7, at 345-47. Return to text.

[40] See Maher, supra note 6, at 282. Return to text.

[41] See id. at 282 n.14. Return to text.

[42] See Maher, supra note 9, at 409-10. Return to text.

[43] See PHILIP K. HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA (1994). Return to text.

[44] The restatement of the classic excuse that "the devil made me do it" in this context is that "the rules made me do it." Return to text.

[45] See Maher, supra note 29, at 329-30, 334. Return to text.

[46] See FLA. STAT. 120.52(15) (1997). Return to text.

[47] See id. Since a rule "means each statement of general applicability that implements, interprets, or prescribes law or policy," the removal of the statement from the Florida Administrative Code does not repeal the rule if the statement is still being followed. Return to text.

[48] See Maher, supra note 29, at 321-28. Return to text.

[49] See id. at 328-30; see also Rossi, supra note 2, at 287. It has gotten so bad that a friend who used to work in an agency and is now in private practice confided that he uses his 1994 rule book when he deals with his old agency because it more completely sets out existing agency policy than does the 1997 version. Return to text.

[50] See FLA. STAT. 120.535 (1995) (requiring that "[e]ach agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable"). Return to text.

[51] For years the Governor's Office followed up its executive order with phone calls to agencies designed to secure their compliance with the 50% reduction quota. Return to text.

[52] See Veto of Fla. CS for CS for SB 536 (1995) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, July 12, 1995) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.); Maher, supra note 29, at 339-41; see also Governor Vetos APA Bill, ADMIN. L. SEC. NEWSL., (Fla. Bar, Tallahassee, Fla.), Sept. 1995, at 1-3. Return to text.

[53] Senate Bill 536, which was vetoed by the Governor, called for a commission appointed by the Governor, the President of the Senate, and the Speaker of the House. See SB 536 (1995). The Governor's Administrative Procedure Act Revision Commission was appointed by the Governor alone. Return to text.

[54] See GOVERNOR'S ADMIN. PROC. ACT REVISION COMM'N, FINAL REPORT (1996). Return to text.

[55] See Act effective May 29, 1997, ch. 97-176, 3, 1997 Fla. Laws 3318 (codified at FLA. STAT. 120.542 (1997)). Return to text.

[56] See id. Section 120.535 has been dispersed to the four corners of the Act, but still remains viable, even though it is now harder to find. Parts of the old 120.535 can be found in sections 120.54(1), 120.56(1) and (4), and 120.595(4), Florida Statutes. I opposed the call to simplify the APA. See Maher, supra note 29, at 341-46. Given the Governor's longstanding opposition to some provisions in the APA, I have always suspected that the driving force behind "simplification" of the APA was not the desire to make it more readable. Professor Rossi notes that even after the face lift, the APA "will still rank low on the average citizen's summer reading list." Rossi, supra note 2, at 289. Return to text.

[57] One good example of this trend is the consolidation of three rule chapters into one by the Florida Housing Finance Agency. See 22 Fla. Admin. W. 2832-62 (May 10, 1996) (repealing chapters 9I-33, 9I-34, and 9I-35 and creating chapter 9I-48). This reorganization turned 46 rules into 32 rules, one with 100 subparts. The reason given for this change was not to reduce the number of rules, but, "to establish a more efficient provision of procedures" applicable to the different programs combined into one chapter. Id. at 2833-35. Return to text.

[58] The degree of relief can only be fully understood when the numbers are examined. Between January 1, 1997, and October 3, 1997, there were 1428 repeals out of a total of 3211 rule actions. In 1996, there were 3482 repeals out of a total of 7035 rule actions. In 1995, there were 5775 repeals out of a total of 10,198 rule actions. Thus, in the last several years there were more than 10,000 repeals. This represents the majority of the 19,667 repeals (out of 112,213 rule actions) from 1975 to October 3, 1997. Those repeals do not represent radical changes in the substantive law established by rule. They represent a decision by government not to follow the law, which requires most policies to be adopted in written, published rules. Return to text.

[59] 683 So. 2d 586 (Fla. 1st DCA 1996). Return to text.

[60] See id. at 588-89. Return to text.

[61] A prospectus is an important document that must, under chapter 723, Florida Statutes, be given to a mobile home owner when the owner moves in to a mobile home park. Return to text.

[62] See Mobile Home, 683 So. 2d at 589. As it turned out, the court found that none of the parties correctly interpreted earlier First District Court precedent. The court interpreted its own precedent not to have the pro-industry effect that everyone had assumed. See id. at 593. The Agency and the owners thus lost the battle (the repeal was found invalid) but won the war (the rule was not in need of repeal for them to prevail, given the court's reading of precedent). See id. Return to text.

[63] See id. at 588. Return to text.

[64] See Act effective Oct. 1, 1996, ch. 96-159, 16, 1996 Fla. Laws 181 (amending FLA. STAT. 120.54(4) (1995)). Return to text.

[65] See Mobile Home, 683 So. 2d at 590. Return to text.

[66] See id. Return to text.

[67] See id. Return to text.

[68] Id. Return to text.

[69] FLA. STAT. 120.52(15) (1997). Return to text.

[70] This section was formerly found in section 120.54(13)(b), Florida Statutes. Return to text.

[71] FLA. STAT. 120.54(3)(d)5 (1997). Return to text.

[72] Except those rules that are, by statute, subject to a modified process. Return to text.

[73] Mobile Home, 683 So. 2d at 590-91. See FLA. STAT. 120.52(16) (1995). Return to text.

[74] FLA. STAT. 120.52(15) (Supp. 1996) (emphasis added). Return to text.

[75] This conclusion is further reinforced by developments during the 1997 legislative session. See discussion infra Part III. Return to text.

[76] Mobile Home, 683 So. 2d at 590. Return to text.

[77] The APA makes specific reference to "repeals" in several rulemaking contexts in the 1996 amendments. There are specific references to repeals in section 120.54(3)(a)(1) (the old 54(1)); section 120.54(3)(b)(1) (statement of estimated regulatory cost); section 120.54(3)(b)(2) (the small county, small city, and small business impact consideration); section 120.54(3)(d)5 (discussed above); and section 120.54(5) (the old 120.54(7)). Return to text.

[78] See Mobile Home, 683 So. 2d at 591 (concluding that "[a] rule repeal that does not have the effect of creating or implementing a new rule or policy is not a 'rule' subject to challenge"). Return to text.

[79] There is a good argument that "intended action" language in section 120.54(3)(c)(1) includes repeals and would require a rulemaking hearing on all repeals if requested. See FLA. STAT. 120.54(3)(c)(1) (1997). That language comes from section 120.54(3)(a)(1), the successor to section 120.54(1), and seems to encompass both adoptions and repeals in that context. That language is repeated in section 120.54(3)(c)(1), the successor to old section 120.54(3), the section that governs rulemaking hearings. Thus, a good argument could be made that, despite the Mobile Home ruling, there still is a right to a rulemaking hearing in connection with all repeals. However, under the logic of Mobile Home, no further action would be required. See Mobile Home, 683 So. 2d. at 593. Return to text.

[80] See Mobile Home, 683 So. 2d. at 591. Return to text.

[81] The JAPC is charged with examining proposed and existing rules. Return to text.

[82] This is because only rules must be adopted and, according to Mobile Home, repeals are not rules. Return to text.

[83] To my knowledge, rule repeals are being handled the same way by the Secretary of State's office and the JAPC after the Mobile Home decision as they were handled before the decision was announced. Return to text.

[84] See Mobile Home , 683 So. 2d at 591. Return to text.

[85] See Maher, supra note 29, at 313, 328. Return to text.

[86] See id. Return to text.

[87] See FLA. STAT. 120.54(3)(a)(1) (1997). These explanations are located in the detailed written statement of the facts and circumstances justifying the proposed rule. Return to text.

[88] See supra text accompanying note 56. Return to text.

[89] See FLA. STAT. 120.56(8)(a) (1997). Return to text.

[90] See id. Return to text.

[91] See id. Return to text.

[92] See id. 120.52(8)(d). The standards would be inadequate in the sense that the rule that results from the repeal is unwritten and thus harder to locate and apply. Return to text.

[93] See id. 120.52(8)(e). Return to text.

[94] See Maher, supra note 29, at 337 ("The whole concept of a fifty percent repeal is more of a publicity stunt than a rational approach to reducing regulation. I believe that this uniform rule repeal quota is per se arbitrary and capricious."). Return to text.

[95] See supra text accompanying note 73. Return to text.

[96] See supra text accompanying note 78. Return to text.

[97] Federation of Mobile Home Owners of Florida, Inc. v. Florida Manufactured Housing Ass'n, Inc., 683 So. 2d 586, 590 n.1 (Fla. 1st DCA 1996) (citations omitted) (discussing Christo v. Florida Dep't of Banking and Fin., 649 So. 2d 318 (Fla. 1st DCA 1995)). Return to text.

[98] Maher, supra note 9, at 399-400. Return to text.

[99] Id. at 400-401. Return to text.

[100] The remedy is weak because rather than invalidate policy, it merely forces the agency to initiate rulemaking or cease reliance on the policy. Return to text.

[101] See Dore, supra note 6, at 439. Return to text.

[102] See Maher, supra note 29, at 331. Return to text.

[103] See id. at 334. While it is hard to know how much unpublished rule policy is now in existence, the fact that more than 10,000 rules have been repealed since January 1, 1995, many, if not most, for political reasons unrelated to policy change, suggests that a huge volume of unpublished rule policy now exists. Return to text.

[104] "The proposed act will cut down on the private knowledge of the policies which shape agency decisions which is now possessed only by small groups of specialists and the agencies' staffs." PRACTICE MANUAL, supra note 17, at 6. Return to text.

[105] Dem., Live Oak. Return to text.

[106] Senator Williams made remarks to this effect both during and after the passage of the legislation that gave rise to the glitch bill. Return to text.

[107] See id. Return to text.

[108] See Act effective May 30, 1997, ch. 97-176, 1-18, 1997 Fla. Laws 3313 (codified in scattered sections of FLA. STAT. ch. 120 (1997)). Return to text.

[109] FLA. STAT. 120.54 (1997). Return to text.

[110] SB 1066 Staff Analysis, supra note 5, at 8. Return to text.

[111] See id. Return to text.

[112] See FLA. STAT. 120.54(3) (1997). Return to text.

[113] See id. Return to text.

[114] See id. Return to text.

[115] SB 1066 Staff Analysis, supra note 5, at 8. Return to text.

[116] See Act effective May 30, 1997, ch. 97-176, 3, 1997 Fla. Laws 3319 (codified at FLA. STAT. 120.54(2)(3) (1997)). Return to text.

[117] FLA. STAT. 120.54(2)(3) (1997). Return to text.

[118] See id. Return to text.

[119] SB 1066 Staff Analysis, supra note 5, at 10. Return to text.

[120] See FLA. STAT. 120.542(8) (1997); SB 1066 Staff Analysis, supra note 5, at 11. Return to text.

[121] See FLA. STAT. 120.542(3) (Supp. 1996). Return to text.

[122] See id. 120.542(3) (1997). Return to text.

[123] See id. Return to text.

[124] See id. 120.542(7). Return to text.

[125] See id. 120.574(1)(c). Return to text.

[126] Maher, supra note 6, at 303. Return to text.

[127] See SB 1066 Staff Analysis, supra note 5, at 13. Return to text.

[128] See FLA. STAT. 120.68(3) (1997). Return to text.

[129] See What's Wrong With the Stay As of Right, ADMIN. L. SEC. NEWSL., (Fla. Bar, Tallahassee, Fla.), June 1995, at 2. Return to text.

[130] See FLA. STAT. 120.68(3) (1997). Return to text.

[131] See Maher, supra note 129, at 2. Return to text.

[132] See APA Review Commission, ADMIN. L. SEC. NEWSL., (Fla. Bar, Tallahassee, Fla.), Dec. 1995, at 5-6. This revision process was a two-step process by general agreement. Step one was simplification and reorganization of the Act to make it more user friendly. Step two was the addition of substantive changes. I was a critic of this process. See The Governor's Proposed Technical APA Revision, ADMIN. L. SEC. NEWSL., (Fla. Bar, Tallahassee, Fla.), Dec. 1995, at 1-3. Return to text.

[133] See FLA. STAT. 120.68(3) (1995). Return to text.

[134] No debate occurred because everyone assumed that the simplification process made no substantive changes to the APA. Return to text.

[135] See SB 1066 Staff Analysis, supra note 5, at 13. Return to text.

[136] FLA. STAT. 120.68(3) (1997). Return to text.

[137] See ARTHUR EARL BONFIELD & MICHAEL ASIMOW, STATE AND FEDERAL ADMINISTRATIVE LAW 718 (1989) ("If the court refuses a stay, the damage to the petitioner may be irreparable; even if the petitioner ultimately wins on the merits, it may be too late."). Return to text.

[138] Act effective June 15, 1976, ch. 76-131, 13, 1976 Fla. Laws 230 (amending FLA. STAT. 120.68(3) (1975)). Return to text.

[139] See PRACTICE MANUAL, supra note 17; see also, FLA. ADMIN. PRACTICE Reporter's Final Draft, at 7 (1995). Return to text.

[140] FLA. ADMIN. PRACTICE Reporter's Final Draft, at 7 (1995). Return to text.

[141] FLA. STAT. 120.68(3) (1974). Return to text.

[142] See FRANK E. COOPER, 2 STATE ADMINISTRATIVE LAW 627 (1965). Return to text.

[143] See FLA. STAT. 120.68(3) (1997), providing:

(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may also grant a stay upon appropriate terms, but, whether or not the action has the effect of suspending or revoking a license, a petition to the agency for a stay is not a prerequisite to a petition to the court for supersedeas. Return to text.

[144] See id. Return to text.

[145] See Cooper, supra note 142, at 628. Return to text.

[146] See Act effective June 16, 1976, ch. 76-131, 13, 1976 Fla. Laws 230 (amending FLA. STAT. 120.68(3) (1975)). Return to text.

[147] Id. Return to text.

[148] Id. Return to text.

[149] See id. Return to text.

[150] Act effective June 27, 1978, ch. 78-425, 11, 1978 Fla. Laws 1418 (amending FLA. STAT. 120.68(3) (1977)). Return to text.

[151] Fla. S. Govtl. Ops. Comm., SB 860 (1978) Staff Analysis 1 (Apr. 24, 1978) (available at Fla. Dep't of State, Div. Of Archives, ser. 18, carton 511, Tallahassee, Fla.). Return to text.

[152] See Trombley v. Florida Real Est. Comm'n, 356 So. 2d 813, 813 (Fla. 4th DCA 1977). Return to text.

[153] Id. Return to text.

[154] See id. Return to text.

[155] See MSQ Properties v. Florida Dep't of HRS, 626 So. 2d 292, 293 (Fla. 1st DCA 1993). Return to text.

[156] See id. Return to text.

[157] Id. Return to text.

[158] Id. This is essentially the same rationale used by the Fourth District Court in Trombley, the case that the 1978 amendment appears to have been adopted to overrule. Return to text.

[159] 634 So. 2d 286 (Fla. 1st DCA 1994) (reviewing the agency's denial of MSQ's motion for stay). Return to text.

[160] See id. at 287. Return to text.

[161] See id. Return to text.

[162] See id. Return to text.

[163] See FLA. STAT. 120.68(3) (1997). Return to text.

[164] FLA. R. APP. P. 9.310(a) ("Except as provided by general law . . . a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief."). Return to text.

[165] See MSQ Properties, 634 So. 2d at 287. Return to text.

[166] See FLA. STAT. 120.68(3) (1997) ("[U]nless the court . . . determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state."). Return to text.

[167] See id. Return to text.

[168] See id. Return to text.

[169] See discussion supra Part III.D.1. Return to text.

[170] Old Timers Restaurant and Lounge, Inc. v. Florida Dep't of Bus. Reg., 483 So. 2d 463, 464-65 (Fla. 1st DCA 1986). Return to text.

[171] Iturralade v. Florida Dep't of Prof. Reg., 482 So. 2d 375, 376 (Fla. 1st DCA 1985). Return to text.

[172] This seems to be the procedure approved by the First District Court. See id. at 376. Assuming MSQ Properties is distinguishable because it does not deal with the stay as of right situation, it is arguably the controlling procedural authority on stay as of right cases today. Return to text.

[173] See Iturralade, 482 So. 2d at 376. Return to text.

[174] 482 So. 2d 375 (Fla. 1st DCA 1985). Return to text.

[175] See Old Timers, 483 So. 2d at 464. Return to text.

[176] See id. Return to text.

[177] Id. Return to text.

[178] 483 So. 2d. 463 (Fla. 1st DCA 1986). Return to text.

[179] See id. at 464. Return to text.

[180] See FLA. STAT. 120.68(3) (1997). Return to text.

[181] Id. Return to text.

[182] That is, wrongdoing resulting in suspension or revocation, rather than lesser discipline like probation or a fine. Return to text.

[183] See Hunt v. Department of Prof. Reg., 558 So. 2d 156, 156 (Fla. 1st DCA 1990) (finding the automatic stay provision inapplicable to probation). Return to text.

[184] See FLA. STAT. 120.68(3) (1997). Return to text.

[185] See id. 90.404(1) (explaining "evidence of a person's character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion [except in the case of the exceptions enumerated in that section, none of which are applicable here]"). Return to text.

[186] Application to circuit courts for injunctive relief in such circumstances has been disapproved. See Department of Bus. Reg. v. Carl & Mike, 425 So. 2d 190, 191 (Fla. 3d DCA 1983). Attempts to use circuit court receiverships to, in effect, stay a license revocation have also been criticized. See Department of Bus. Reg. v. Garcia, 446 So. 2d 167, 169 (Fla. 2d DCA 1984). Return to text.

[187] See Carl & Mike, 425 So. 2d at 191 (holding that the appellant was not precluded from raising appropriate constitutional challenges "before this court and in the corresponding application for stay"). Return to text.

[188] See FLA. STAT. ch. 120 (Tentative Draft No. 6, 1997) [hereinafter Draft]. Return to text.

[189] See id. at 25. Return to text.

[190] Id. Return to text.

[191] See id. Return to text.

[192] See id. Return to text.

[193] See FLA. STAT. 120.54(3)(c)(1) (1997); Balino v. Department of HRS., 362 So. 2d 21, 24-25 (Fla. 1st DCA 1978). Return to text.

[194] Section 120.57(2), Florida Statutes, is the proper remedy where no material questions of fact exist. Where material facts are in dispute, a section 120.57(1) proceeding should be convened. Return to text.

[195] See Mixon v. Department of State, 686 So. 2d 755, 755 (Fla. 1st DCA 1997) (explaining that a section 120.57(1) hearing should be convened if, during a section 120.57(2) proceeding, it becomes apparent that there are material facts in dispute); see also Dixon v. Florida Elections Comm'n, 681 So. 2d 877 (Fla. 1st DCA 1996); Iazzo v. Department of Prof'l Regulation, 630 So. 2d 583 (Fla. 1st DCA 1994). Return to text.

[196] See Goldberg v. Kelly, 397 U.S. 254, 269 (1970). The court did not relegate the participants to written submissions, but instead required what has become known as welfare fair hearings. Return to text.

[197] The only explanation for the proposal that I have found states:

The working group felt that parts of s. 120.569 were not in total harmony with the concept of informal proceedings under s. 120.57(2). This can be corrected by substituting "proceeding" for "hearing" throughout the section and in the title of s. 120.57(2). A clarification of agencies' discretion to accept either written or oral evidence in informal proceedings is also offered.

Legislature Considers APA Glitch Bill, ADMIN. L. SEC. NEWSLETTER, (Fla. Bar, Tallahassee, Fla.), Apr., 1997, at 10. I do not find the characterization of this change as a correction to be either fair or accurate, given either the history or purpose of this section. Return to text.

[198] See Maher, supra note 6, at 293. ("The 1981 MSAPA . . . provides much less protection for constituent interests from agency encroachment than the present Florida APA."). Return to text.

[199] FLA. STAT. 102.57(2)(a)(2) (1997). Return to text.

[200] See SB 1066 Staff Analysis, supra note 5, at 11. Return to text.

[201] See FLA. STAT. 120.54(3)(c)(2) (1997). For a brief history and description of the draw out, see Maher, supra note 30, at 780-84. Return to text.

[202] See Draft, supra note 188, at 11-12. Return to text.

[203] FLA. STAT. 120.54(3)(c)(2) (1997). Return to text.

[204] See id. Return to text.

[205] See id. Return to text.

[206] See, e.g., Patricia A. Dore, Access to Florida Administrative Proceedings, 13 FLA. ST. U. L. REV. 967, 1006 (1986). Return to text.

[207] See Patricia A. Dore, Seventh Administrative Law Conference Agenda and Report, 18 FLA. ST. U. L. REV. 703, 727-32 (1991); Maher, supra note 30, at 780-92, 805-11, 834-53; Stephen T. Maher, Rulemaking in Florida: An Opportunity for Reflection, FLA. B.J., Jan. 1990, at 48, 48-50. Return to text.

[208] See Balino v. Department of HRS, 362 So. 2d 21, 25-26 (Fla. 1st DCA 1978); Maher, supra note 30, at 811 n.195 ("All the reported appellate decisions discussing the draw out concern the agency's refusal to convene draw out proceedings . . . ."). I have been a persistent critic of the way the courts have responded to draw out requests, but Professor Dore was generally supportive of the limiting construction given to the provision by the courts. See id. at 809-10. Return to text.

[209] See Maher, supra note 30, at 805 n.173 ("Agency reluctance to grant a draw out is traceable to its reluctance to share control over factfinding with DOAH and its reluctance to provide the detailed explanations the draw out may require."). Return to text.

[210] Dore, supra note 206, at 1008. Return to text.

[211] See FLA. STAT. 120.543 (1997). For the history of this amendment, see Maher, supra note 9, at 430-35. Return to text.

[212] Draft, supra note 188, at 34. Return to text.

[213] See discussion supra Part III.D.1. Return to text.