The Importance And Proper Use Of Administrative Declaratory Statements - Court Procedure

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 petitioner's particular circumstances.A declaratory statement is not the appropriate means for determining the conduct of another person.

Rulemaking Authority 14.202, 120.54(5)(b)6. FS. Law Implemented 120.54(5)(b)6. FS. History–New 4-1-97, Amended 1-15-07.

Finally, Rule 28-105.003, Florida Administrative Code, allows an agency not headed by a collegial body to hold a public hearing on such petitions, but a public hearing is required to be held by agencies headed by a collegial body.

Use and Application of Petitions for Declaratory Statements

A petition for declaratory statement can be used to assist clients in a number of factual situations, such as:

Determination of the need for a particular type of state license.

Interpretation of the statutory scope of a contractor's license. E.g., Cepcot Corporation v. Department of Business and Professional Regulation,Construction Industry Licensing Board, 658 So. 2d 1092 (Fla. 2d DCA 1995).

Application of sales taxes to leases. E.g., Regal Kitchens, Inc. v. Department of Revenue, 641 So. 2d 158 (Fla. 1st DCA 1994).

Exemption of sales taxes on construction contracts. E.g., Warning Safety Lights of Georgia, Inc. v. Department of Revenue, 678 So. 2d 1377 (Fla. 4th DCA 1996).

Application of legislative budget provisions to pubic funding of political campaigns. E.g., Chiles v. Department of State, Division of Elections, 711 So. 2d 151 (Fla. 1st DCA 1998).

On the other hand, there are situations in which an agency has been found to have properly denied a petition for declaratory statement, including:

Actions by a nonparty adjoining property owner. E.g., Sutton v. Department of Environmental Protection, 654 So. 2d 1047 (Fla. 5th DCA 1995).

Voiding a contract. E.g., Lennar Homes, Inc., v. Department of Business and Professional Regulation, 888 So. 2d 50 (Fla. 1st DCA 2004).

Applicability of air quality permits to others. E.g., Manasota-88, Inc., v. Gardinier, Inc., 481 So. 2d 948 (Fla. 1st DCA 1986).

Construing a future contract. E.g., Lawyers Professional Liability Insurance Company v. Shand, Morahan & Company, 394, So. 2d 238 (Fla. 1st DCA 1981), and Couch v. Department of Rehabilitative Services, 377 So. 2d 32 (Fla. 1st DCA 1979).

Lack of existing doubt or controversy. E.g., Federation of Mobile Homeowners of Florida, Inc. v. Department of Professional Regulation, 479 So. 2d 252 (Fla. 2d DCA 1985).

Construing provisions of a declaration of condominium. E.g., Grippe v. Department of Business and Professional Regulation, 729 So. 2d 459 (Fla. 4th DCA 1999).

Application to prior conduct. E.g., Novick v. Department of Health, Board of Medicine, 816 So. 2d 1237 (Fla. 5th DCA 2002).

Construing a constitutional provision. E.g., Myers v. Hawkins, 362 So. 2d 926 (Fla. 1978).

Challenging an agency decision. E.g., Kahn v. Florida Office of Insurance Regulation, 881 So. 2d 699 (Fla. 1st DCA 2004).

Legal Requirements: Basic Rules of the Road
The following are the basic legal requirements for the proper use of petitions for declaratory statement:

Particular Set of Circumstances — Both the statute and the rule make it clear that a declaratory statement must be applicable to the petitioner's "particular circumstances." That is, the petition must include a set of facts describing how the statement or answer being sought applies to the petitioner. Hypothetical situations or questions are not allowed. However, in Florida Department of Business Regulation v. Investment Corp. of Palm Beach, 747 So. 2d 374 (Fla. 1999), the Florida Supreme Court clarified that a declaratory statement may also affect others (in that case, all pari-mutuel facilities), by overturning the Third DCA's rejection of a declaratory statement and adopting Judge Cope's dissenting opinion. In Investment Corp., the high court also approved the result in Chiles, which upheld a Department of State's declaratory statement to one statewide political candidate on the subject of public campaign financing that was also applicable to all statewide election campaigns.
Substantially Affected/Standing — In addition, the petitioner must be "substantially affected" by the statement or answer being sought. A petitioner's "standing" has been the subject of much judicial interpretation, and is perhaps best represented by the application of some of the case decisions. For example, some cases have applied the same standards for determination of a party's standing for purposes of rule challenges under §120.56, and for purposes of requests for formal administrative hearings pursuant to §120.57, to those required for petitions for declaratory statements.¹⁴

A trade association also may have standing to seek a declaratory statement subject to the same three-part test as set forth for rule challenges in Florida Home Builders Association: 1) A substantial number of its members are "substantially affected"; 2) the subject matter must be within the association's general scope of interest and activity; and 3) it must be appropriate for the association to receive on behalf of its members.

Whether a petitioner is "substantially affected" has also been determined in light of a petitioner's "particular set of circumstances," in upholding an agency's denial of a declaratory statement. In National Association of Optometrists and Opticians v. Florida Department of Health, Board of Optometry and Wal-Mart Stores, 922 So. 2d 1060 (Fla. 1st DCA 2006), the petitioner inquired about the validity of proposed terms of an office lease; however, by the time the petition was considered by the board, the lease had been amended to delete those provisions.

Conduct of Others — Rule 28-105.001, Florida Administrative Code, clearly provides that the use of a declaratory statement is an inappropriate means to inquire about the conduct of someone other than the petitioner; accordingly, any such petition should be denied if it does not directly affect the petitioner. Perhaps the easiest way to make this determination is to ask: "What conduct or position of the petitioner would be changed or affected by a declaratory statement?" If the answer is that the petitioner's conduct or position would not be changed or affected by whatever the statement says, then the statement is not about the petitioner. In such cases, then, the statement might only affect someone other than the petitioner, and, thus, would be inappropriate. Further, and as noted above, in such cases the petitioner may not even have the requisite "standing" to have requested the declaratory statement in the first place.
Future Action Only — This requirement, as with judicial proceedings for declaratory judgments, requires that there be an actual "case or controversy," without which the agency has no jurisdiction to issue a declaratory statement.¹⁵ Thus, a petition for declaratory statement cannot be used to seek approval or confirmation of actions that have already taken place; however, that restriction might be overcome by simply describing the petitioner's actions as taking place in the future (just as with any continuing actions).
No Pending Litigation — This restriction provides that if a judicial proceeding is pending in which the relief being sought in the petition for declaratory statement can be obtained, it is not the appropriate subject for a declaratory statement. In other words, if the judicial branch has already exercised jurisdiction over the subject matter, that exercise of jurisdiction preempts executive branch jurisdiction, at least while the court action is pending. In an interesting application of this principle, the court held that a petitioner was not barred from seeking a declaratory statement on a subject for which the agency has issued "investigative subpoenas," since that action alone did not constitute "litigation."¹⁶
Impermissibly Broad Statement — An agency should not utilize a declaratory statement to adopt a board policy or interpretation, or to repudiate an agency rule, either of which would require, instead, that the agency use the rulemaking procedures set forth in Ch. 120.¹⁷

Pleadings

A petition for a declaratory statement must be filed with the clerk of the agency that has authority to interpret the statute, rule, or order at issue. The required contents of a petition for declaratory statement are set out in Rule 28-105.002, Florida Administrative Code. These include:

The caption as a petition for declaratory statement with the name of the agency;

Name, address, phone number, and any facsimile number¹⁸ of the petitioners (which may be that of the petitioner's attorney or qualified agent);

Name, address, phone number, and any facsimile number of the petitioner's attorney or qualified agent;

The statutory provision(s), agency rule(s), or agency order on which the declaratory statement is sought;

A description of how the statute(s), rule(s), or order(s) may substantially affect the petitioner in the petitioner's particular set of circumstances;

Signature of the petitioner or petitioner's attorney or qualified agent; and,

Date.

While there are no reported cases in which a declaratory statement was found to be improper based on the failure of the petition to set forth these key substantive contents, petitioners and agencies should be sensitive to these content requirements, and to the possible reversal on judicial review by intervenors. Additionally, agencies and boards should reject petitions that fail to meet these minimum requirements, rather than risk issuing an opinion based on a misunderstanding of the petitioner's position and being possibly bound to an erroneous statement.¹⁹

Practice

The statute and Rule 28-105.0024, Florida Administrative Code, requires that notice of a petition for declaratory statement be published in the "next available" issue of the Florida Administrative Weekly (now known as the Florida Administrative Register²⁰), and Rule 28-105.003, Florida Administrative Code, sets forth the circumstances under which a public hearing may be required in order to consider such a petition.

While the notice publication requirement is the responsibility of the receiving agency, the burden of providing sufficient information and proof of the required elements falls on the petitioner, who should be prepared to present the petition to the agency if a hearing is required. However, any resulting declaratory statement will be based on an assumption by the agency that the facts alleged in the petition are true, since the agency does not investigate the facts alleged, but rather assumes the truth of those allegations, subject to the rights of an intervener to prove otherwise. Of course, the agency may use its collective knowledge of the law and rules, and members of a board may use their individual knowledge of the regulated profession in asking questions of the petitioner, making statements regarding the subject of the petition, and proposing the language of any declaratory statement.

Prior declaratory statements issued by the same agency on the same or similar factual allegations should be reviewed before the petition is filed. These can usually be found on the agency website or by a public records request made to the agency clerk pursuant to F.S. §119.07. In addition, F.S. §120.53(1)(a)2.c.(III) requires each agency to maintain a subject matter index of declaratory statements (and other orders).

Finally, the saying "be careful what you ask for" is applicable. In this regard, it's good practice to informally discuss the proposed petition with the agency's legal counsel and to prepare a memorandum of law or proposed declaratory statement in support of the position being sought. In addition, a petitioner should be prepared to withdraw the petition in advance of the agency's issuance of a declaratory statement that is adverse to the petitioner's position, unless judicial review is to be sought.

Intervention

Currently, Rule 28-105.0027, Florida Administrative Code, provides that the "presiding officer shall allow for intervention of persons meeting the requirements for intervention of Rule 28-106.205, FAC," and requires that a petition²¹ for leave to intervene must be filed at least 10 days before the final hearing, subject to the hearing officer's imposition of such "terms and conditions on the intevenor to limit prejudice to other parties." However, present Rule 28-106.205 requires that a petition for leave to intervene must be filed by a person "whose substantial interest will be affected by the proceeding," at least 20 days prior to the final hearing.²²

Fortunately, the recent rule changes recommended by the Administrative Law Section, and approved for publication as a notice of rulemaking by the Florida Administration Commission, seeks to correct this inconsistency by providing for the filing of a "motion" for leave to intervene within 21 days after the publication of the notice of the petition for declaratory statement.²³ In addition, with the recent statutory change that the Florida Administrative Register be published electronically on a daily basis, the lead time for publication of such notices has been substantially reduced.

Unless and until the currently proposed rule changes have been implemented to correct the inconsistency, the author recommends that the notice of the public hearing should be published not earlier than 30 days prior to the scheduled final hearing in order to give intervenors a timely opportunity to seek intervention status; otherwise, the agency's grant or denial of a petition may be premature as to any potential intervenor, a potential ground for remand upon judicial review.

The current rules allow the petitioner for a declaratory statement to file a response in opposition to any attempted intervention within seven days of service of the petition to intervene. The pending proposed rule changes also include a new subsection (3) that provides: "[S]pecifically-named parties, whose substantial interests are being determined in the proceeding, may become a party by entering an appearance and need not request leave to intervene." While it remains to be determined how this new provision will be applied, it might be best for a petitioner not to include the names of any other persons so that those persons cannot become parties to the proceeding without first timely filing a motion for leave to intervene, thereby allowing the petitioner the opportunity to oppose any such motion.

As explained in the following section regarding judicial review, in the event intervention status is sought and granted, the intervenor will be bound by any resulting declaratory statement, and, if adversely affected, will have the right to seek timely appellate review. The cases have been fairly uniform in holding that intervention should be granted as of right, if the proposed intervenor can sufficiently allege "substantial interest."²⁴

Judicial Review

As previously mentioned, declaratory statements are "final agency action," and are subject to judicial review by an appropriate district court of appeal pursuant to F.S. §120.68.²⁵

However, judicial review is available only to a party that is adversely affected by the declaratory statement, including parties allowed to intervene.²⁶ On the other hand, a nonparty is not bound by the declaratory statement, and that should be considered carefully by one who contemplates seeking leave to intervene. It should also be noted that a hearing officer lacks jurisdiction to invalidate a declaratory statement in an administrative challenge to a nonrule policy.²⁷

Conclusion

While there are many technical legal requirements to be met, a petition for declaratory statement can be an important and effective tool to obtain helpful assistance from a state agency in a manner and form that can be binding on that agency. This is especially true where a client's planned actions might otherwise lead to adverse action being taken by the agency, such as in situations involving the interpretation of licensing provisions or other legal requirements that might be imposed on the client, except in a situation in which the petitioner wishes to seek judicial review if the agency's action is adverse.

Any legal research regarding the interpretation of statutes or rules would be incomplete without a review of prior declaratory statements issued by the appropriate agency, which each agency is required to index pursuant to F.S. §120.53.

The recent increase in the use of petitions for declaratory statements appears to be an indication of a growing tendency by both regulators and those who are regulated to reach prompt and binding decisions at a cost much more affordable that might otherwise only be available with the use of other administrative or judicial proceedings. If so, the use of such petitions should be encouraged in advance of possible adverse action, much as the judicial branch has done with regard to the mandatory application methods of alternative dispute resolution in civil matters.

While future changes in the rules governing declaratory statements as described in this article would be appropriate, such as clarifying an agency's authority to reject petitions that lack the required contents, the recently proposed rule changes scheduled to become effective February 25, 2013, should continue to encourage the use of this important administrative tool.

Footnotes

^{1 There are many fine recent articles regarding the use of
declaratory statements, including the following which are highly
recommended: M.C. Lannon,} ^{Petitions for Declaratory
Statement – To Answer or Not To Answer,} ^{24
Admin. L. Section Newsletter (Sept. 20-02); S. Frazier,} ^{The Expanded Availability of Declaratory Statement in
Administrative Law,} ⁷⁴^{Fla. B. J. 90
(April 2000); S. Ansbacher & R. Downie II,} ^{The
Evolution of Declaratory Statements,} ⁷⁷^{Fla. B. J. 69 (Nov. 2003); and, C.
Sellers}^{, Declaratory Statements,} ^{Fla. Environmental and Land Use L. 4.4-1 (June 2012).} ^{2 Fla. Stat. §120.565(1) (2012).} ^{3 A discussion of the agencies and functions of agency
that are not subject to Ch. 120 is beyond the scope of this
article.} ^{4 Eleven such exemptions were granted by the State
Board of Administration between April 1997 and June 1998, dealing
with specific rules or programs of named school boards, community
colleges, water management districts, Public Service Commission,
Department of Environmental Protection, and Department of Children
and Families.} ⁵ ^{Odham v. Foremost Dairies,
Inc.}^{, 128 So. 2d 586 (Fla. 1961).} ⁶ ^{Couch v. State}^{, 377
So. 2d 32 (Fla. 1st DCA 1979).} ^{See Okaloosa Island
Association v. Okaloosa Island Authority}^{, 308 So.
2d 120 (Fla. 1st DCA 1975), where an agency's dismissal of a
petition for declaratory statement was upheld because the
petitioner alleged that it had no doubt.} ^{7 The Construction Industry Licensing Board, under the
Department of Business and Professional Regulation (DBPR), received
23 such petitions during fiscal year 2010-2011 and 33 such
petitions during fiscal year 2011-2012. Overall, all the boards
under DBPR received 104 such petitions during fiscal year
2010-2011, and 77 such petitions during fiscal year 2011-2012
(exclusive of the Florida Building Commission, formerly under the
now-abolished Department of Community Affairs, which had 17 such
petitions filed during fiscal year 2011-2012).} ^{8 However, in 1996, the word "only," in
reference to the petitioner's "particular set of
circumstances," was removed, and subsequent judicial opinions
have allowed the use of declaratory statements even where the
results might be applicable to an entire industry or group of
persons.} ^{See Chiles v. Department of State, Division
of Elections}^{, 711 So. 2d 151 (Fla. 1st DCA 1998);
and} ^{Florida Department of Business Regulation v.
Investment Corp. of Palm Beach}^{, 747 So. 2d 374
(Fla. 1999).} ^{9 Patricia A. Dore,} ^{Access to Florida
Administrative Proceedings}^{, 13 Fla. St. U. L. Rev.
965 (1986).} ¹⁰ ^Id. ^at
1053. ¹¹ ^Id^{. at 1056. However,
her opinion regarding the need for agencies to adopt rules
regarding declaratory statements was based on F.S. §120.565(1)
(1996), which was removed by §17, Ch. 96-159, Laws of Florida,
effective October 1, 1996.} ¹² ^{Investment
Corporation}^{, 747 So. 2d at 376.} ^{13 Notice of these rule changes can be found in the
November 27, 2012, issue of} ^{Florida Administrative
Register} ^{(Vol. 38, No. 78).} ¹⁴ ^See^{Federation of
Mobile Homeowners,} ^{479 So. 2d 252, in which the
agency's dismissal of a petition for declaratory statement was
reversed based on} ^{Florida Home Builders Association
v. Department of Labor and Employment Security,} ^{412
So. 2d 351 (Fla. 1982).} ¹⁵ ^{Federation of Mobile
Homeowners,} ^{479 So. 2d 252.} ¹⁶ ^See^{ExxonMobil Oil
Corporation v. Florida Department of Agriculture and Consumer
Services,} ^{50 So. 3d 755 (Fla. 1st DCA 2010), in
which the petitioner was seeking the agency's interpretation of
the "price gouging" statutes as applied to the use of
regional market prices for gasoline.} ¹⁷ ^See^{Tampa Electric
Co. v. Florida Department of Community Affairs}^{, 654
So. 2d 998 (Fla. 1st DCA 1995),} ^citing^{Regal Kitchens,
Inc.}^{, 641 So. 2d 158; and} ^{Investment
Corporation}^{, 747 So. 2d 374, recognizing that any
agency may approve a declaratory statement, while also instituting
rulemaking procedures on the same subject.} ^{18 The inclusion of "any e-mail address" has
been recently proposed by the State Board of Administration as an
amendment to Rule 28-106.104(2)(d), for all pleadings filed with an
agency, and to Rule 28-106.201(b) and Rule 28-106.205, all to be
effective February 25, 2013.} ^{19 Some agency counsel are of the opinion that an
agency cannot reject a petition for declaratory statement for lack
of meeting the minimum content requirements, and are, therefore,
required to publish notice of filing and schedule a hearing
thereon. Since there appear to be a large number of such petitions
that are denied following a hearing due to the failure of
petitioners to meet these minimum legal requirements, perhaps some
consideration should be given to a statutory or rule change
specifically providing the agency with authority to reject
petitions that fail to meet these minimum content requirements.
Since the denial of a petition for declaratory statements
constitutes "final agency action," so as to trigger a
point of entry for judicial review, due process requirements would
appear to be sufficient in the event a denial of the petition is
issued on this basis without a hearing.} ²⁰ ^See ^{§2, Ch.
2012-63, Laws of Florida, effective October 1,
2012.} ^{21 Effective February 25, 2013, this rule has been
noticed for amendment to change "petition" to
"motion" with regard to interveners.} ²² ^See^{Florida
Optometric Association v. Department of Professional
Regulation}^{, 567 So. 2d 928 (Fla. 1st DCA 1990),
upholding as timely a petition for leave to intervene filed only
three days prior to the board's public hearing and 11 days
after the publication of notice of the petition for declaratory
statement.} ^{23 This new filing date is proposed as additional
subsection (6) to Rule 28-105.004, and the current 10-day filing
requirement is proposed to be deleted from Rule
28-105.0027.} ²⁴ ^See^{Florida
Optometric Association v. Department of Professional Regulation,
Board of Opticians}^{, 567 So. 2d 928 (Fla. 1st DCA
1990), in which an agency's denial of intervention was
overturned based on the two-prong test of standing to challenge the
issuance of a permit set forth in} ^{Agrico Chemical
Company v. Department of Environmental Protection,} ^{406 So. 2d 478 (Fla. 2d DCA 1981), which requires that the
intervenor would suffer 1) imminent substantial injury in fact; and
2) substantial injury of the type or nature that the statutory
provisions were designed to protect. The second prong of the
two-part test, the so-called "zone of protected interest"
test, was first announced in} ^{Data Processing Service
v. Camp}^{, 397 U.S. 150 (1970). Agency denial of
standing to bring a rule challenge based on the standards set
in} ^Agrico^{, was overturned based on
the standards set forth in} ^{Florida Home Builders
Association}^{, 412 So. 2d 351; and in} ^{Florida Medical Association v. Department of Professional
Regulation}^{, 426 So. 2d 1112 (Fla. 1st DCA 1983).
For an interesting comparison of the different standards for
determining standing,} ^{see Florida Optometric
Association v. Department of Professional
Regulation}^{, 567 So. 2d 928 (Fla. 1st DCA
1990).} ^{25 Based on the author's personal communications on
June 18, 2012, with the current appellate counsel for the Florida
Department of Business and Professional Regulation, Gar Chisenhall,
that agency has had only two appeals involving declaratory
statements filed in the past three and one-half
years.} ²⁶ ^{Ameriloss Public Adjusting
Corporation v. In Re Matter of Clyde Lightbourn,} ^{48
So. 3d 107 (Fla. 3d DCA 2010).} ²⁷ ^{Department of Health and
Rehabilitative Services v. Barr}^{, 359 So. 2d 503
(Fla. 1st DCA 1978). This case also held that such agency orders
are "stare decisis, not res judicata."}

Previously published in The Florida Bar Journal

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United States: The Importance And Proper Use Of Administrative Declaratory Statements