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Hearing Procedures

When the substantial interests of any person have been adversely affected by state regulatory action the law provides a means of review. This applies to disciplinary measures, licensure application denials and a wide range of other governmental activities. The agency is required to provide written notice of its action and of the affected party’s right to a timely hearing. The failure to request a hearing within the time described in the notice may result in the forfeiture of this important right.

There are two hearing procedures available under Section 120.57 of the Florida Administrative Procedure Act. The first applies to situations in which there are no disputed issues of “material fact”. It is intended to resolve interpretations or applications of the law based upon essentially agreed upon facts. Review is conducted by the agency itself and not an independent judge. In this proceeding, the agency’s initial findings may be accepted by the licensee subject to mitigation, or the agency may be requested to reconsider or modify its interpretation of the law. Factual disputes are not open to consideration and the opportunity for a truly impartial determination may be limited. Once this procedure has been elected, the opportunity to pursue an alternative proceeding in the Division of Administrative Hearings may be lost. Accordingly, it is often inadvisable to pursue this procedure when there are significant disputed issues of material fact.

The second hearing procedure allows for an evidentiary hearing in the Division of Administrative Hearings before an independent Administrative Law Judge. This process is similar to a non-jury trial. There is a right to present witnesses and other forms of evidence, to cross examine the agency’s witnesses and contest the agency’s evidence and legal positions.

Florida’s Administrative Procedure Act is admirable in its effort to create a level playing field between the state’s administrative agencies and the individuals and businesses subject to its regulation. Suffice to say, the decision to pursue an administrative hearing or other kinds of relief under the Act should be made carefully and on an informed basis.

Note: The decision to elect any administrative remedy must necessarily turn upon the particular facts and circumstances of each case. This writing is intended for general informational purposes only. Any decision to pursue or not to pursue a particular administrative remedy should be made up appropriate consultation with counsel.