The following information is provided as a general guide to the potential situations, outcomes, and strategies you could experience during the course of the complaint process. The following information should not be understood as creating a lawyer/client relationship. Every complaint is unique and for this reason, the general information below might not be applicable and you should contact an experienced health care attorney to discuss your rights and options.
1. What should I do if I receive a complaint?
You should contact an attorney experienced in dealing with agencies of the State of Florida. Gather all of the documents the State sent or served on you, plus any other letters, correspondence, or notes and be prepared to review them with the attorney. If you don’t respond to a notice from the State of Florida in a timely manner you could possibly lose your right to challenge the actions of the government.
2. Should I speak with the Investigator?
Generally speaking, you should avoid giving statements to government investigators who are looking into a complaint against you. Remember, any statement that you provide to the agency or its attorney may be used against you. Many people who speak with me about their situation are under the mistaken impression that they can charm or endear themselves to the agency investigator in the hopes of cutting a deal or getting the investigation terminated. This is naïve. Investigators and attorneys for the government have a job to do and are not about to jeopardize their jobs by dismissing a complaint because they like or feel sorry for you. Certain licensees have a legal obligation to give a statement to the agency, however in any event you should consult an experienced attorney before speaking with state agency investigators.
3. What happens after a complaint has been filed against me or my license has been denied?
You are usually given a deadline to respond or appeal the actions of the state agency. If an agency receives information that a licensee may have violated the law governing that business or profession, it may commence an investigation and possible disciplinary proceedings. The State is required to notify you of the decision and provide you with rights to appeal or submit a response.
4. I received an Emergency Suspension Order (ESO) can I still practice?
Many agencies of the State of Florida utilize a form known as an Election of Rights or EOR, which advises the licensee of various options in responding to the charges. Generally, those options are: waive all your rights to be heard, seek an informal hearing or ask for what is known as a formal hearing. If you are disputing the allegations against you a formal hearing is the method by which an administrative law judge is appointed to hear evidence. This is a lengthy process. Where the licensee provides a timely response disputing the complaint allegations, the agency will refer the case to the Division of Administrative Hearings (DOAH) for an evidentiary hearing under 120.57(1) before an administrative law judge (ALJ). After the hearing, the ALJ will issue recommended findings and action. An informal hearing in some situations is preferable if there are violations of law the government can definitely prove. With an informal hearing, you are essentially admitting to the violation but trying to see if the agency will be lenient in meting out punishment. This is a very slippery slope and should not be initiated before obtaining the advice of an attorney who is experienced in this area of law.
5. If I have a Criminal Record Should I Disclose it in My Application?
Yes. When in doubt disclose it. Applicants are denied a license for failing to disclose criminal records. Never make the assumption that the state agency will not find or uncover a past criminal record or conviction. In instances where an applicant lies about his/her criminal past when the agency finds out after the license is issued, the agency will proceed to revoke the license after the fact. Seek experienced counsel to review your particular situation.
6. I have a criminal conviction or arrest can I be admitted in Florida?
Chapter 120, Florida Statutes allow in some instances a licensee to challenge an agency rule or agency policy not properly adopted. In some instances, the licensee may request a rule waiver or variance if strict application of the rule is unreasonable.
7. What law governs my situation?
It depends on the nature of your case and the specific agency of state government you are dealing with. Generally speaking, if you are challenging a final action of a state agency, Chapter 120, Florida Statutes sets forth the procedures. However, each state agency has specific laws and rules which govern the type of business or professional license you have. Laws which govern licensing, disciplinary action, and emergency suspensions or restrictions, including time limits, notice requirements, and the criteria that must be met for emergency licensure actions are found within various provisions of the Florida Statutes or the Florida Administrative Code.
8. Is licensing subject to the APA?
The APA establishes a timeframe in which an agency must act on an application for licensure. The failure of the agency to respond to the application for licensure within the prescribed time results in default licensure, so long as the applicant successfully completes an examination required and satisfies other statutory requirements. Upon receipt of an application for licensure, an agency has 30 days in which to examine the application and notify the applicant of any errors or omissions as well as request any additional information as permitted by law. If the agency takes such action within 30 days, an application may be denied if an applicant fails to correct errors or omissions or supply additional information as requested.
Under the APA, license applications must be approved or denied within 90 days of the original application or the agency’s request for additional information. This period may be tolled as a result of the initiation of administrative proceedings under 120.57, F.S., with the time resuming after the administrative law judge issues a recommended order.
An agency must provide to the applicant written notice of its proposed action, as well as information regarding administrative and judicial review options and the applicable time limits and procedures to be followed. Before an agency may revoke, suspend, amend, or withdraw a license, it must notify the licensee by personal service or certified mail of the circumstances justifying the agency’s pending action. In this event, the licensee has the right to request a hearing under 120.57, F.S.
An agency may summarily suspend, restrict, or limit a license if it finds that an immediate serious danger to the public health, safety, or welfare requires an emergency suspension.
8. What is a variance or waiver to the APA?
Revisions to the APA in 1996 include a provision allowing agencies to grant variances and waivers from requirements of their rules in order to avoid unreasonable, unfair, and unintended results. If a citizen subject to a rule can demonstrate that a rule would “create a substantial hardship or would violate principles of fairness” (120.542(2), F.S.), an agency must grant a variance or waiver if the person can meet the purpose of the underlying statute through other means. An agency may not grant a variance or waiver to statutes. A copy of both the petition and the agency’s order granting or denying the petition, containing a statement of the relevant facts and reasons supporting the agency’s action, must be filed with JAPC.
9. What is a petition to initiate rulemaking?
Pursuant to 120.54(7), F.S., any person who is regulated by an agency or who has a substantial interest in an agency’s rule may petition the agency to adopt, amend, or repeal a rule. The agency must respond by either agreeing to initiate rulemaking or by denying the petition. This decision in the form of a written statement is considered a final action that may be appealed pursuant to 120.68, F.S.
If a petition to initiate rulemaking is directed to an existing rule which the agency has not adopted as a rule, and the agency, after holding a public hearing, does not initiate rulemaking or otherwise comply with the requested action, the agency must publish a statement of its reasons in the FAW. The agency is required to file the statement with JAPC, who then forwards a copy of the statement to the substantive committees of the Legislature with primary oversight jurisdiction of the agency. JAPC or a committee with oversight jurisdiction may hold a hearing directed to the agency statement and may recommend appropriate legislation.
10. What is a declaratory statement?
The purpose of an agency declaratory statement is the clarification of an agency’s interpretation of a provision of law or of a rule or order of the agency.
An agency must publish each petition for declaratory statement, as well as its disposition of the petition, in the FAW. In declaratory statements, an agency gives an opinion on the applicability of a specific statutory provision, agency rule, or order of the agency as it applies to the petitioner’s individual situation. A declaratory statement is a final agency action subject to judicial review.
11. Are exemptions to the APA permitted?
At the request of an agency, the Governor and Cabinet, sitting as the Administration Commission, may grant an exemption from any of the requirements in any process or proceeding governed by the APA under certain circumstances. An agency head might request an exemption based on the fact that specific requirements conflict with a federal law or rule with which the agency must comply. An exemption might also be granted because tax benefits or federal funds cannot be received otherwise. If the Administration Commission determines that compliance with certain requirements would be inconvenient or impractical enough to defeat the purpose of the APA, an exemption may be granted. The Commission may not grant an exemption until it establishes alternative procedures that achieve the agency’s purpose and are consistent with the intent of the APA. An order granting or denying an exemption and specifying any alternative procedures is provided to JAPC and published in the Florida Administrative Weekly. If granted, the exemption and the established alternative procedures terminate 90 days following adjournment sine die of either the current or next regular legislative session after the granting of the exemption or on the effective date of any consequent legislation that addresses the exemption, whichever is earlier.
12. Where does a citizen go for help?
A citizen with concerns about an agency action may contact the offices of their elected state legislators for assistance. A list of legislators, the specific districts they represent, and information on how to contact them is available on the House and Senate pages of Online Sunshine at http://www.leg.state.fl.us.
A citizen with a special interest in an agency’s rule or unadopted policy may also contact JAPC for assistance. Although the staff cannot represent any person, it can look into matters related to the committee’s statutory responsibility to generally review agency action pursuant to the Administrative Procedure Act. If it appears that an agency is not fulfilling the requirements of the Act, the committee will contact the agency to seek compliance and may take other action authorized by Chapter 120, F.S. The committee can provide information about the procedures and remedies that may be available under Chapter 120, F.S., to a citizen affected by agency action.