We are excited to announce the formalization of our Government & Administrative practice group comprised of nearly thirty multi-disciplinary attorneys and professionals from our five offices throughout Florida. For more information on the group, view the
press release and
our website.
We are also pleased to bring you from the crossroads of business and government our quarterly Crème de law Admin newsletter. Each seasonal issue will cover all things administrative law, including hot topics, legal updates, lessons learned, and agency happenings.
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Who Makes the Rules?
Florida's New Paradigm of Constitutional Rulemaking
To avoid wasting valuable time and resources, a party wanting to challenge an administrative agency's rule or rule-based decision is well advised to seek out an administrative attorney to determine first from where the agency derived its rulemaking authority.
The answer to this first necessary step may change the entire recommended course of action for a particular case.
Florida administrative agencies can and do derive their rulemaking power both from statutory and constitutional grants of authority. When the grant of rulemaking authority is statutory, that means that it is the Florida Legislature's delegating authority. When the grant of rulemaking authority is constitutional, however, that means it is the Florida Constitution which is delegating authority.
Given the passage of numerous amendments to Florida's Constitution in the last general election, including several that resulted in agency rulemaking directed by the constitutional amendments, it is now more important than ever for this threshold inquiry to be done at the outset of any case in which an agency has taken adverse action based on its rules and regulations.
The source of the authority for an objectionable rule may affect which tribunal has jurisdiction to hear a challenge to that rule. Picking the wrong tribunal in which to file your challenge to the agency's rule or rule-based decision can result in inefficiencies, delay, waste of resources, and could even foreclose the ability to challenge altogether.
To read more on Florida's emerging trends in constitutional rulemaking,
click here.
Meet the Authors
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| Everglades Law Ctr., Inc. v. South Fla. Water Mgmt. Dist.,
Nos. 4D18-1220, 4D18-2124, 2019 WL 4458737, at *1-10
(Fla. 4th DCA Sept. 18, 2019)
In Everglades Law Center, Inc. v. South Florida Water Management District, the Fourth District Court of Appeal (DCA) held that mediation communications between a government board and its attorney regarding litigation in a private "shade meeting" transcript are exempt from public disclosure. In its analysis, the DCA balanced the Florida Constitution, Florida's Sunshine Law, the Florida Public Records Act, and the Mediation Confidentiality and Privilege Act. But the DCA also held that a trial court must inspect the transcript to decide what is exempt versus what is not, and what is not exempt must still be produced. Moving forward, if mediation communications are discussed at a shade meeting, the transcript is likely to be subject to review by the trial court to determine if an exemption applies and if redaction is appropriate.
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| A & S Entm't, LLC v. Fla. Dep't of Revenue,
282 So. 3d 905 (Fla. 3rd DCA 2019)
A & S Entertainment, LLC v. Florida Department of Revenue, provides a cautionary tale to companies subject to sales and use tax audits by the Department of Revenue (DOR). The Third District Court of Appeal found that A&S's failure to meaningfully participate and meet deadlines during the audit meant DOR's imposition of over $1.9 million for sales and use tax, penalties, and accrued interest would stand, notwithstanding A&S's claims that it was denied due process.
Any entity facing a DOR sales & use tax audit should seek legal advice from a qualified attorney as close to the start of an audit as possible.
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Stearns Weaver Miller Tallahassee Office
Located at the crossroads of government and commerce, our Tallahassee office is strategically positioned to assist clients throughout the State. The Tallahassee team works collaboratively with the professionals in the Firm's other offices and across all substantive areas to serve our clients efficiently and effectively. With diverse collective experience and full-service capabilities, we assist clients in every segment of a project, from start to finish.
The Firm's powerhouse Tallahassee team is distinguished for its local and state leadership, relationships, and strong legal work in a myriad of areas including Cannabis, Commercial Litigation, Election & Political, Government & Administrative, Healthcare, Labor & Employment, Land Development, Zoning & Environmental, Litigation & Dispute Resolution, Tax, Trusts & Estates, and Transportation & Infrastructure. The group is supported and enhanced by in-house consultants including a Government Affairs Director, an AICP certified planner, and a GIS Director who provides data management, analysis and mapping services.
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RECENT NEWS
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GOVERNMENT AT A GLANCE
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What's Happening at the Division of Administrative Hearings (DOAH)?
When Florida agency action impacts the substantial interests of a person or entity (such as a license denial or disciplinary action, proposal or adoption of an agency rule, or award of a government contract), the affected person or entity can request an administrative hearing to challenge that agency action. Hearings that involve disputed issues of fact are heard at DOAH, with an Administrative Law Judges (ALJ) presiding.
The Governor and Cabinet sitting as the Administration Commission appoint the Director of DOAH, who must then be confirmed by the Florida Senate. § 120.65, F.S. The Director is the Chief ALJ who oversees and hires the more than thirty ALJs that handle DOAH's caseload.
After sixteen years as DOAH Director, Robert S. ("Bob") Cohen stepped down, and John MacIver was selected by the Governor and Cabinet by a vote of 3-1 in September 2019. MacIver immediately started in the position pending Senate confirmation. Immediately prior to his appointment, MacIver served as deputy general counsel in the Executive Office of Governor (EOG) Ron DeSantis, where he oversaw the legal offices of Florida's executive branch health, welfare, and business regulatory agencies. Prior to his work in the EOG, MacIver was the rules attorney for Florida's Department of Business & Professional Regulation.
Since the Florida legislative Session began on January 14, 2020, the executive appointment has been referred to two Senate committees, out of which the appointment must pass to be ready for a vote of the Senate. At present, MacIver's appointment has not yet been placed on the agenda of the first Senate committee. Florida's legislative Session ends on March 13, 2020, and will not resume until March 2021.
Since MacIver joined DOAH, three new ALJs have been appointed, all of Tallahassee:
- Brittany O'Connor Finkbeiner
- Jodi-Ann V. Livingstone
- Brian A. Newman
Meet the Authors
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