Florida Administrative Law: When Preparing a Request for a Declaratory Statement, Comply with all Statutory and Administrative Code Requirements

January 13, 2015

medicalIn Florida, as in most states, if you desire the answer to a question from a state administrative agency, you may file a request (or “Petition”) for a declaratory statement from that agency on the issue. To do this you must precisely follow all of the statutory requirements and requirements found in the Florida

Administrative Code (F.A.C.), or your request is likely to be dismissed for legal insufficiency.

The statutory authority for requesting a declaratory statement comes from Chapter 120, Florida Statutes, specifically, Section 120.565, Florida Statutes entitled: “Declaratory Statement by Agencies.”

Only “Substantially Affected Persons” May File a Petition for a Declaratory Statement. 

Section 120.565(1), Florida Statutes, states the first requirement that you must meet in order to be able to sustain a petition for a declaratory statement. It states:

Any substantially affected person may seek a declaratory statement regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.

Thus, the petition may only be sought by a “substantially affected person.” Substantially affected can mean that the outcome of the agency’s decision will affect the way the “person” practices his/her or its profession. “Substantially affected” may mean that the person’s income or property may be lost or devalued if there is no decision. It may also mean that a person is subject to disciplinary action including loss of a license or an administrative fine. A corporation or other business entity, such as an insurance company, hospital, pharmacy or health care clinic is a “person” under Florida law. Be prepared to both state in the petition and to prove that you are a “substantially affected person.”

You must Be Specific in What You Are Requesting.

Section 120.565(2), Florida Statutes, states other requirements that must be met to have a valid request are:

The petition seeking a declaratory statement shall state with particularity the petitioner’s set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances.

Once the Petition Is Filed, the Agency must Publish Public Notice and Issue a Statement Within 90 Days.

Section 120.565(3), Florida Statutes, requires that public notice be published when a Petition for a declaratory statement is filed.  This gives members of the public who may have an interest in the subject matter a chance to intervene or challenge it. It also gives notice rights to those who may desire to obtain a contrary decision on the issue. Therefore, know ahead of time that whatever you say in your petition is going to be made public and there may be others with a contrary point of view who attempt to get involved in the proceedings.

Section 120.565(3), Florida Statutes also states: “The agency shall issue a declaratory statement or deny the petition within 90 days after the filing of the petition.” However, all of the requirements for the agency to issue a well­informed declaratory statement must be met or the petition may be rejected as incomplete or denied.

Therefore, you must be thorough, detailed and complete in what you place in your petition. Do not assume that you will be given a second chance if your petition is not complete. The agency’s decision will be considered the “final agency action,” which means the petitioner’s only recourse would be to appeal an adverse decision to a district court of appeal.

Additional Rules for Petitions May Be Found on the DOAH Website.

There are additional rules that a petition for a declaratory statement must meet. These are set forth in Chapter 28­105, F.A.C., a copy of which can be accessed on the Division of Administrative Hearings (DOAH) website at http://www.doah.state.fl.us/ALJ/Rules/.

Be sure to follow these rules precisely to avoid having your petition dismissed.

Practice Tips for Those Filing Petitions for Declaratory Statements.

The following are some practice tips based on our experience in representing clients seeking declaratory statements:

  1. Retain the services of an attorney experienced in administrative law or health law who has filed petitions for a declaratory statement before. Don’t try to do it yourself if you are not an experienced attorney.
  2. Follow the requirements of the statutes and rules exactly.
  3. Just writing a letter to the agency is not sufficient.
  4. Be sure that you are contacting the correct agency that has jurisdiction to make the decision that you are requesting. For example, don’t ask the Board of Medicine to make a decision on a drug a pharmacy can dispense.
  5. Allege that the petitioner is a “substantially affected person” and include facts which show why.
  6. Don’t ask the agency to disregard a law or part of a law (unless the law specifically authorizes this). The agency may not legally authorize a departure from the law. The law is passed by the Legislature and the agency is not authorized to negate it or authorize a violation of it.
  7. Include copies of all applicable rules, regulations, opinions, cases, legal authority, medical authority, industry standards, documents, professional association guidelines, federal guidelines, expert opinions, etc., attached to your petition.
  8. Be sure your petition is well­organized, well written and concisely states what you would like the declaratory statement to state.
  9. When the hearing on your petition for a declaratory statement is scheduled, you must attend it in person and be prepared to answer questions and discuss the issues it presents. If you fail to attend, this will indicate to the agency that you do not take the matter seriously. Additionally, if the agency considering the petition has unanswered questions, and you are not there to answer them, the petition may be denied for this reason.
  10. You may be represented by an attorney at the hearing considering your petition and we recommend this. Most attorneys are used to presenting and speaking at such hearings and will not be intimidated by having to do this.

Sample Petition for Declaratory Statement.

I have attached a petition for a declaratory statement that I prepared and filed in a case before the Board of Psychology. It can be adopted for use before just about any state agency. However, realize that all circumstances are different and every petition must be modified to accurately set forth the issues for that petitioner and that set of circumstances.

Comments?

Have you had any experience in filing a request for a declaratory statement? Please leave any thoughtful comments below.