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The Bar Bulletin
Jax Daily Record Monday, May 7, 201809:59 AM EST

Commentary: Amendment carries potential administrative litigation change

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Revision 1 proposes to require courts and administrative law judges to conduct a de novo review of an agency’s interpretation of a statute or rule.

By John Wallace: Lewis, Longman & Walker

Last month, the Florida Constitution Revision Commission concluded its agenda by approving eight revisions for placement on the ballot for the Nov. 6 general election.

Of particular note to administrative practitioners, and particularly environmental attorneys, is Revision 1, which sailed mostly under the radar, overshadowed by debate over more visible, and arguably, less impactful, proposals.

Among other changes, Revision 1 adds Section 21 to Article V. It would eliminate the deference typically afforded to a state agency in interpreting the statutes such an agency is charged with implementing, along with rules promulgated in furtherance of such a charge. This is a fairly drastic change which, if adopted, will torpedo years of precedent.

Revision 1 proposes to require courts and administrative law judges to conduct a de novo review of an agency’s interpretation of a statute or rule. The revision provides as follows:

SECTION 21. Judicial interpretation of statutes and rules. 

In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute de novo.

Traditionally, an agency is given great deference when it interprets the statutes and rules it is charged with implementing, particularly when the agency has special expertise in the subject matter covered by such statutes or rules.

For example, the Department of Environmental Protection is charged with implementing section 373.4131, Florida Statutes, which required the department to develop a statewide environmental resource permitting program. In furtherance of that duty, the department has promulgated Chapter 62-330, Florida Administrative Code, which establishes a framework and permitting criteria for the issuance of a variety of permits, such as permits for constructing certain types of docks, for installation of boat ramp facilities, for construction, maintenance, and removal of airport stormwater management systems and for numerous other activities.

The department has promulgated various other regulations, such as Chapter 62-345, Florida Administrative Code (establishing the Uniform Mitigation Assessment Method); Chapter 62-342, Florida Administrative Code (criteria for the permitting of mitigation banks); and Chapter 62-304, Florida Administrative Code (establishing total maximum daily loads of pollutants for various receiving waterbodies), all aimed at implementing various statutory provisions under Chapters 373 and 403, Florida Statutes.

Many of these regulations cover highly technical topics, and it is for this reason that the department has traditionally been afforded deference by the courts and administrative tribunals.

The same rationale underpins the doctrine of primary administrative jurisdiction. The department has subject matter expertise in these areas and courts typically do not second-guess that expertise.

Courts and administrative tribunals have traditionally employed a three-part test in evaluating whether an agency’s interpretation of a statute or rule will be upheld. A court will uphold the agency’s interpretation where (i) the interpretation complies with the essential requirements of the law; (ii) such interpretation is based upon competent, substantial evidence; and (iii) the interpretation upholds the legislative intent of the statute or rule.

This rule appears to have grown more lenient over the years, with the state Supreme Court commenting “an agency’s interpretation of a statute it is charged with enforcing is entitled to great deference and will be approved by this court if not clearly erroneous.” Fla. Interexchange Carriers v. Clark, 678 So. 2d 1267 (Fla. 1996).

The practical result of the deference toward agency interpretation is that in most cases, a party challenging the agency’s determination faces an uphill battle. As a practitioner, it is always preferable to be aligned with the agency’s interpretation of a statute or rule. 

The addition of Section 21 to Article V stands to topple existing precedent and may cause substantial changes in how administrative litigation is conducted. If passed, alignment with an agency’s interpretation of a statute or rule, while still important, will not be the bellwether of success to an administrative proceeding or circuit court litigation.

Parties to administrative litigation must focus on the actual interpretation of a rule or statute, rather than relying on the agency interpretation and attacking or defending the application of facts to the agency’s interpretation.

The greater focus on interpretation will increase the importance of researching legislative and rule-making history, application of rules of statutory construction and expert testimony aimed at supporting or undermining agency interpretation. 

From an environmental attorney’s perspective, it is unclear who stands to benefit more from the change. Certainly, environmental groups have long struggled with deference to agencies such as Water Management Districts and the Department of Environmental Protection. These groups may welcome increased judicial oversight. On the other hand, developers seeking to challenge permit denials also stand to benefit from less agency deference.

On balance, it is the author’s opinion that in the current landscape, the proposed revision is more favorable for environmental groups than for the development community.

In the long term, the proposed revision may serve to mitigate changes in agency positions based upon political winds, which may benefit environmentalists and developers alike. 

John Wallace is an attorney with Lewis, Longman & Walker and practices environmental and land use law. 

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