The Importance And Proper Use Of Administrative Declaratory Statements

Fred Dudley is Senior Counsel in our Tallahassee office

Many attorneys may be familiar with judicial proceedings for declaratory judgments authorized by F.S. Ch. 86, but may not be as familiar with the importance and use of administrative proceedings for declaratory statements authorized in F.S. Ch. 120, the Administrative Procedure Act. This article describes the application of the major legal principles and recent rule changes proposed by the Administrative Law Section for the effective use of declaratory statements.1 A declaratory statement is used to obtain an interpretation of a statute, rule, or order from a state agency as applicable to a petitioner's "particular set of circumstances."2 It is a means of resolving a controversy or addressing questions or doubts about the applicability of statutes, rules, or agency orders. The legal authority for the use of declaratory statements is found in F.S. §120.565, and Ch. 28, Florida Administrative Code, known as the "uniform rules," with the procedural requirements set forth in Rules 28-105 and 28-106. As of July 1, 1998, each agency subject to Ch. 1203 is required to follow the uniform rules, unless the state Administration Commission (that is, the governor, chief financial officer, and attorney general) have granted specific exemptions pursuant to §120.54(5).4 There are similarities between declaratory judgments in civil practice and declaratory statements in administrative practice, but there are also some major differences. For example, while both are useful to determine a person's rights and duties either under a statute or a rule, the use of a declaratory judgment in civil practice usually requires that all administrative remedies be first exhausted5 (with some exceptions), notwithstanding the apparent "non-exhaustion" language of F.S. §86.111. Because of the similarities, appellate courts reviewing declaratory statements have been guided by case law arising under Ch. 86.6 There is a growing use of petitions for declaratory statements to some agencies and boards as a "safe harbor" to determine if a person's proposed conduct is legal, and to bind an agency to a position upon which the petitioner can rely.7 As such, a declaratory statement can be an important tool in seeking a prompt and binding interpretation of a statute, rule, or order over which a particular agency or board has jurisdiction, at least as that relates to a client's future conduct under a particular set of circumstances as described in the petition. In fact, in the absence of case law, a petition for declaratory statement can be an important tool to use as the basis for, and in advance of, rendering a legal opinion to a client. As with a judicial action for a declaratory judgment, an administrative proceeding for declaratory statement requires that there be a real issue in controversy involving the petitioner. In administrative law, this later requirement is usually referred to as "standing," and is a critical element required to support a declaratory statement, expressed in statutory terms of a "substantially affected person."

History of Declaratory Statements

Florida became one of the first states to adopt an act governing administrative procedures in 1974, and the provisions regarding the use of declaratory statements have remained almost unchanged since then.8 However, as will be described in this article, many judicial decisions have imposed legal requirements and restrictions on the use of declaratory statements in addition to those set forth in the statute or rule provisions. In her 1986 law review article9 on the Florida Administrative Procedure Act, Professor Patricia A. Dore expressed her view that agencies should freely allow the use of declaratory statements with a standard of access less restrictive than that allowed for declaratory judgment actions: "The declaratory statement provision is an Executive Branch substitute for the declaratory judgment action. It is intended, however, that the administrative substitute be more widely available than the judicial remedy and that its use not be unduly restricted by artificial access barriers that would frustrate its primary purpose."10 Professor Dore acknowledged that there are many legitimate reasons for an agency to decline to issue a declaratory statement, but urged that those reasons be reflected in agency rules.11 However, her opinions in support of a lower access barrier to the use of declaratory statements certainly influenced an important decision reversing the denial of a declaratory statement.12 The uniform rules applicable to administrative proceedings are currently undergoing revision by the Florida Administration Commission at the request of the Bar's Administrative Law Section. Some of these proposed rule changes that apply to declaratory statements are described in this article. None of these changes, however, appear to incorporate any of the judicially created reasons for an agency's denial of a petition for declaratory statement, as described herein.13 Authority for Declaratory Statements F.S. §120.565 sets forth the statutory authority for agencies to issue declaratory statements, as follows (emphasis added): 120.565. Declaratory statement by agencies.

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. The petition seeking a declaratory statement shall state with particularity the petitioner's set of circumstancesand shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances. The agency shall give notice of the filing of each petition in the next available issue of the Florida Administrative Weekly and transmit copies of each petition to the committee.The agency shall issue a declaratory statement or deny the petition within 90 days after the filing of the petition. The declaratory statement or denial of the petition shall be noticed in the next available issue of the Florida Administrative Weekly.Agency disposition of petitions shall be final agency action. The disposition of a petition for declaratory statement constitutes "final agency action," which triggers the judicial review provisions of F.S. §120.68 later described in this article. Additionally, Rule 28-105.001, Florida Administrative Code, defines the use and purpose of an agency's declaratory statement in the following manner (emphasis added): 28-105.001 Purpose and Use of Declaratory Statement. A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the...