Administrative Hearings under Florida Statutes Chapter 120

Realtors, contractors, and numerous other professionals licensed through the Florida Department of Business and Professional Regulations are subject to Florida’s administrative process. If you have been served with an administrative complaint or if your license or permit has been denied or revoked, you may be familiar with what is referred to as a 120.57 hearing. Under Florida’s Administrative Procedure Act, Florida Statutes Chapter 120, there are three types of procedures that fall within Section 120.57: a Section 120.57(1) hearing with disputed issues of fact; a Section 120.57(2) hearing with no factual dispute; and 120.57(3), which deals with the procedures required to protest a state agency decision awarding a contract or soliciting bids. The bid protest procedures of Section 120.57(3) are beyond the scope of this article.

Formal and Informal Administrative Hearings

Although both types of hearing may involve substantial rights and should not be taken lightly, 120.57(1) hearings are often referred to as “formal hearings,” while 120.57(2) hearings are referred to as “informal hearings.” The primary difference is that the former involves disputed issues of fact, while the latter does not. For that reason, 120.57(1) hearings have greater procedural protections for participants, including but not limited to the right to cross-examine witnesses and the right to submit proposed findings of facts and orders. Section 120.57(2) hearings also provide participants with certain procedural protections such as the right to be represented by counsel. However, since informal hearings do not involve disputed issues of fact, such hearings may be conducted purely on submission of written evidence if the parties involved agree.

Petitioning for a Hearing: Don’t Delay!

If you have received a Notice of Intent to Deny a permit or a Complaint concerning a license you currently hold, you likely have a right to appeal by petitioning for a 120.57(1) or 120.57(2) hearing. The applicable timelines to petition for relief should be carefully observed to preserve your right to appeal. Often, a petition to appeal a Notice of Intent to Deny a permit must be received by (not sent to) the appropriate agency within 21 days of the date on the notice being appealed, which does not leave any time for delay. For the timelines and procedures applicable to your particular situation, you should refer to the documentation you received or consult an attorney without delay.

What Happens after I Submit a Petition for a Formal Hearing?

If you submit a petition to a Florida agency requesting a 120.57(1) formal hearing, the matter will then be referred by the agency to the Division of Administrative Hearings (“DOAH”), an independent Florida agency created by statute. The hearing, which resembles a nonjury trial, is held before an administrative law judge (“ALJ”) who will issue a recommended order based upon the hearing. The recommended order will include recommended findings of fact and conclusions of law. For this reason, it is important to present sufficient and appropriate evidence in the hearing to develop an adequate record for appeal, should an appeal be required. The ALJ’s recommended order is then submitted back to the relevant Florida agency, which may deny, approve, or modify the recommendation and issue the final agency action. The agency’s final action is subject to appeal in Florida’s District Courts of Appeal.

When Can I Have My Day in Court?

Pursuant to Florida Statutes Section 120.68, a “party who is adversely affected by final agency action is entitled to judicial review.” While this may sound broad, some constraints do apply. In order to have standing to challenge action by a Florida agency, among other things, there is a requirement that the agency action must be final, not preliminary or intermediate. This means that although you may be unhappy with an agency decision, you may have to navigate the administrative process before you are entitled to relief in Florida’s court system, otherwise known as exhausting your administrative remedies. There are certain exceptions to this general rule. Florida Statutes Section 120.68 states that a “preliminary, procedural, or intermediate order of the agency or of an administrative law judge” is immediately reviewable if “review of the final agency decision would not provide an adequate remedy.”

Can I Be Represented at an Administrative Hearing?

While you may attempt to navigate Florida’s administrative process yourself, you do have the right to hire an attorney to protect your rights. However, unlike certain criminal proceedings, the state will not provide you with an attorney to protect your rights. This article gives a general overview of Florida’s administrative process that is applicable to certain situations, but each situation differs and an attorney should be consulted to determine your rights and obligations and the procedures applicable to your case.

This newsletter is for general information and education purposes only. It is not offered as legal advice or legal opinion. To the extent this message contains tax advice, the U.S. Treasury Department requires us to inform you that any advice in this letter is not intended or written by our firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Advice from our firm relating to Federal tax matters may not be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer.


0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *