CopyCited 190 times | Published | Florida 1st District Court of Appeal
...le or order." State ex rel. Dep't of Gen. Serv. v. Willis,
344 So.2d 580, 584 (Fla. 1st DCA 1977). Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
...ication in the Florida Administrative Code. Given such strictures on policy utterance, public information concerning agency purpose would vanish. Agency orders under Section
120.57 and agency declaratory statements of the applicability of its rules, Section
120.565, would tend to become arid, unreasoning edicts because explanation and interpretation, without rulemaking, would be held fatal to the intended action....
CopyCited 37 times | Published | Florida 1st District Court of Appeal
...The relief Jerry seeks is in essence an administrative declaration of his rights as affected by the DOR Rule. Florida's APA provides two distinct types of declaratory statements: (1) A declaratory statement involving the applicability of a statute, rule or order as provided by Section
120.565, and (2) a declaratory statement on the validity of a rule or proposed rule, provided by Sections
120.54 and .56....
CopyCited 25 times | Published | Florida 1st District Court of Appeal
...signed its interest in the subleases to Sans Souci, a partnership. In late 1980, Sans Souci determined to exercise its contractual right to raise the rent on its subleases. The condominium unit owners, through their condominium association, sought a Section 120.565, Florida Statutes (1979), [2] declaratory statement from the Division in order to preclude Sans Souci from raising the rent by exercising the escalation clause in the sublease....
...ere could be no unconstitutional impairment of Sans Souci's contractual obligation, since Section
718.401(8) was in effect prior to the assignment of any interest in the lease to Sans Souci. As to the jurisdictional problem, appellant asserts that a Section
120.565 declaratory statement is an improper vehicle to use in this case, because the appellant's constitutional rights are at stake, to wit: the application of Section
718.401(8) unconstitutionally impairs the appellant's contractual *626 rights and appellee's obligations under the escalation clause....
...rom it, and the constitutional question is necessarily phrased, ingeniously or ingenuously, as a variation of the affected party's original position on the nonconstitutional question." Key Haven Associated, at 71. The agency has acted properly under Section
120.565, Florida Statutes (1979), since that statute manifests the legislature's intent that, when invoked, agency declaratory statements " shall state the agency's opinion of how a specified statute applies to a particular individual in his particular circumstances." State of Florida, Department of Environmental Regulation v. Falls Chase Special Taxing District,
424 So.2d 787 (Fla. 1st DCA, 1982) (Robert Smith, C.J., dissenting). Further, Section
120.565, when read together and harmonized with Section
718.401, Florida Statutes (1981), providing that condominiums may be created on lands held under lease for no less than 50 years, evinces the logical deduction that the legislature wisel...
...1(1) affords the Division the power to (1) determine whether any person has violated Chapter 718; (2) interpret the chapter, and (3) issue annually to condominium associations a summary of its declaratory statements. [4] *627 By rule, as required by Section
120.565, [5] the Division, as a sub-agency of the Department of Business Regulation, has the power to issue declaratory statements to any party "who is affected or substantially affected by any Division's statutory provisions... ." Fla. Admin. Code Rule 7-3.01. The condominium unit owners sought a declaratory statement as to the applicability of Section
718.401(8) to their sublease escalation clauses, and we find that the Division properly issued a Section
120.565 declaratory statement....
...____, SANS SOUCI, a Condominium as per Declaration of Condominium thereof recorded in Official Record Book ___, page ___, public records, Escambia County, Florida, together with Indoor Parking Space No. ___, upon the following terms and conditions: [2] Section 120.565 states in relevant part: Declaratory statement by agencies Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements....
CopyCited 22 times | Published | Supreme Court of Florida
...Myers, a member of The Florida Bar and an elected state senator, to review an order of the Florida Public Service Commission which prohibits him from practicing before that agency. The genesis of the present controversy was Myers' request for a declaratory statement from the Commission, pursuant to Section 120.565, Florida Statutes (1977), as to whether he would be permitted to continue practicing before the Commission [1] following the 1976 adoption by the voters of Florida of the so-called "Sunshine Amendment" to the Florida Constitution....
...We share amici's view that the Administrative Procedure Act, Chapter 120, Florida Statutes (1977), is not the appropriate mechanism by which to determine the meaning of ambiguous constitutional terms. [4] Indeed, declaratory statements authorized by Section 120.565 are particularly unsuited to that purpose....
CopyCited 22 times | Published | Florida 1st District Court of Appeal
...Browning, the hearing officer found no "injury in fact" because doubt or uncertainty concerning the eventual impact of a rule cannot satisfy such requirement, and that if Mr. Browning is in doubt, he has only to petition the Board of Pharmacy for a declaratory statement under Section 120.565, Florida Statutes (1981)....
CopyCited 20 times | Published | Supreme Court of Florida | 1999 WL 1018661
...In subsection (1), the statute creates the right to "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." § 120.565(1), Fla....
...In subsection (3), the statute requires the agency to "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 [Legislature's administrative procedures] committee." Id. § 120.565(3)....
...Equally clearly, the Legislature required publication of the resulting declaratory statement precisely because assuming the agency is operating evenhandedlythe interpretation announced in the declaratory statement will be applied to others who are similarly situated. The point is that in enacting section 120.565, the Legislature created an important tool to vindicate the individual rights of individual citizens....
...The citizen has a right under the statute to get a clear, binding answer from the agency on how the agency's statute and rules apply to that individual citizen. The citizen not only has a right to an answer, but also a right to an answer within a time certain: ninety days. See § 120.565(3), Fla....
...In taking the position it does, the majority opinion fails to give effect to the 1996 amendments to the APA. The majority opinion acknowledges that the pre-1996 statute had said that a petitioner could request a declaratory statement "as it applies to the petitioner in his or her particular set of circumstances only. " § 120.565, Fla....
...of Opticianry,
567 So.2d 928, 937 (Fla. 1st DCA 1990). In my view, those cases misread the statutory intent. The earlier statute allowed a petition for declaratory statement "as it applies to the petitioner in his or her particular set of circumstances only." §
120.565, Fla....
...pothetical question unrelated to his personal situation." Dore, supra, at 1048. As suggested by Professor Dore's analysis, the Florida Optometric line of cases read too much into the pre-1996 phrase "his or her particular set of circumstances only." § 120.565, Fla....
...f a declaratory statement. The court ultimately concluded that it was, reasoning: Prior versions of the Administrative Procedure Act support the Governor and Comptroller's position that a declaratory statement must be based on a unique set of facts. Section 120.565, Florida Statutes (1995), provided in part that "[a] declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his or her particular set of circumstances only " (emphasis added)....
...Department of Professional Regulation, Board of Opticianry,
567 So.2d 928 (Fla. 1st DCA 1990) (interpreting identical language in an earlier statute). However, the present case is subject to a less restrictive provision in the Administrative Procedure Act, as revised in 1996. Section
120.565(1), Florida Statutes (Supp.1996), states that "[a]ny substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or any rule or order of the agency, as...
...However, a declaratory statement is not transformed into a rule merely because it addresses a matter of interest to more than one person. The purpose of a declaratory statement is to address the applicability of a statutory provision or an order or rule of the agency in particular circumstances. See § 120.565, Florida Statutes (1996)....
...ful guidance to others who are likely to interact with the agency in similar circumstances. Another party can expect the agency to apply the rationale for its declaratory statement consistently, or to explain why a different application is required. Section 120.565(2), Florida Statutes (Supp.1996), requires the agency to give notice of the filing of each petition for declaratory statement in the Florida Administrative Law Weekly. This provision accounts for the possibility that a declaratory statement may, in a practical sense, affect the rights of other parties. 1 Note 1: The notice provision in section 120.565, Florida Statutes, (1996) suggests that a declaratory statement, although not binding as precedent, has at least some "precedential significance." See Arthur J....
...Thus, even if true, the arguments of respondents and amicus curiae that the revised APA did not entail substantive changes would still not support their contention that a declaratory statement must be so narrowly tailored. Notwithstanding, the Legislature clearly had some purpose in mind when it deleted the word "only" from section 120.565(1)....
...ely unique application was permissible. While Professor Dore's treatise provides revealing insight into the original purpose of the declaratory statement provision, on *384 the other hand, respondents correctly note that sections
120.52,
120.54, and
120.565 (Supp.1996) must be read in pari materia....
...ion
120.54(1)(a) provides that "[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s.
120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable." As to section
120.565, that statute mandates that: (1) 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....
...gency in support of the declaratory statement may offer useful guidance to others who are likely to interact with the agency in similar circumstances"). In short, the majority opinion below and respondents advocate a hypertechnical interpretation of section 120.565 which serves no logical end. [10] We also find that the procedural safeguards inherent in a petition for declaratory statement are sufficient to protect the rights of any other concerned parties. Section 120.565(3) mandates that "[t]he agency shall give notice of the filing of each petition in the next available issue of the Florida Administrative Weekly...." Here, the Division complied with that mandatory requirement and ensured that proper notice was given....
...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. § 120.565, Fla....
CopyCited 19 times | Published | Supreme Court of Florida | 2000 WL 1508541
...d; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes, (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrativ...
...Subdivision (c)(2)(B)(vii), which refers to "any decision, opinion, order, or report by the presiding officer," was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes....
CopyCited 18 times | Published | Florida 1st District Court of Appeal | 1998 WL 233507
...is not rendered invalid merely because other candidates are in the same position. Prior versions of the Administrative Procedure Act support the Governor and Comptroller's position that a declaratory statement must be based on a unique set of facts. Section 120.565, Florida Statutes (1995), provided in part that "[a] declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his or her particular set of circumstances only" (emphasis added)....
...Department of Professional Regulation, Board of Opticianry,
567 So.2d 928 (Fla. 1st DCA 1990) (interpreting identical language in an earlier statute). However, the present case is subject to a less restrictive provision in the Administrative Procedure Act, as revised in 1996. Section
120.565(1), Florida Statutes (Supp.1996), states that "[a]ny substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or any rule or order of the agency, as...
...However, a declaratory statement is not transformed into a rule merely because it addresses a matter of interest to more than one person. The purpose of a declaratory statement is to address the applicability of a statutory provision or an order or rule of the agency in particular circumstances. See § 120.565, Florida Statutes (1996)....
...ful guidance to others who are likely to interact with the agency in similar circumstances. Another party can expect the agency to apply the rationale for its declaratory statement consistently, or to explain why a different application is required. Section 120.565(2), Florida Statutes (Supp.1996), requires the agency to give notice of the filing of each petition for declaratory statement in the Florida Administrative Law Weekly....
...The Division was authorized to reach the merits of the issue raised by the petition even though other statewide candidates might have also raised the same issue. A declaratory statement by a state administrative agency is subject to judicial review by appeal. Section
120.565(3), Florida Statutes (Supp.1996), states that an agency's disposition of a petition for declaratory statement "shall be final agency action," and final agency action is reviewable by appeal under section
120.68(1), Florida Statutes (Supp.1996)....
...On the merits, we hold that the Division's interpretation of section
215.3206(2) Florida Statutes (1997), is clearly erroneous. Therefore, we reverse with instructions to vacate the declaratory statement. Reversed. ERVIN and BENTON, JJ., concur. NOTES [1] The notice provision in section
120.565, Florida Statutes, (1996) suggests that a declaratory statement, although not binding as precedent, has at least some "precedential significance." See Arthur J....
CopyCited 18 times | Published | Florida 1st District Court of Appeal | 1994 Fla. App. LEXIS 7498, 1994 WL 391328
...owner is a general partnership and the operator is a corporation. In the process, the Department made a detailed analysis of rule 12A-1.070(19)(c). The first issue is whether the declaratory statement is impermissibly broad. We conclude that it is. Section 120.565, Florida Statutes (1989), states in part that "[a] declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petition...
...Technical assistance advisements shall have no precedential value except to the taxpayer who requests the advisement and then only for the specific transaction addressed in the technical assistance advisement ... A technical assistance advisement is not an order issued pursuant to s. 120.565 or s....
CopyCited 18 times | Published | Florida 1st District Court of Appeal
...It is clear, however, that Land Sales' action in withholding approval for release of the escrow funds is an "agency action" [§
120.52(2), Fla. Stat.] which would be subject to a Section
120.57(1) or (2) petition for administrative hearing. See Willis, supra . Further, a petition for declaratory statement pursuant to Section
120.565, Florida Statutes, may well have been an appropriate avenue for relief....
CopyCited 14 times | Published | Florida 1st District Court of Appeal | 1990 WL 129106
...ent of visual performance. It can be used to test near, intermediate and distance vision, for each eye alone or for both working together; muscle balance; color perception; depth perception; and peripheral vision. In accordance with the directive of Section 120.565, Florida Statutes, the Board provided public notice of the petition in the April 21, 1989 edition of the Florida Administrative Weekly....
...Resolution of this issue requires careful analysis of the interplay of a number of statutes and administrative rules. The Board's contention that the optometrists' petition was untimely goes as follows. The Board gave notice of the petition for declaratory statement in accordance with the provisions of Section 120.565, Florida Statutes....
...ency decision. Capeletti Bros., Inc. v. Department of Transp., supra , and Gulf Coast Home Health Servs. of Fla., Inc. v. Department of Health and Rehabilitative Servs.,
515 So.2d 1009 (Fla. 1st DCA 1987). Although the declaratory statement statute, Section
120.565, Florida Statutes, provides that an agency "shall give notice of each petition [for declaratory statement] in the Florida Administrative Weekly," the statute does not specify the contents of the notice. Nor do the declaratory statement rules specify the contents of the notice, other than the Rule 28-4.001 directive that the agency "shall give notice of each petition, briefly stating the question presented, in the manner prescribed by Section
120.565, F.S." Clearly, however, a declaratory statement is an "agency decision," and Section
120.565 indicates that a declaratory statement is "final agency action." Consequently, the right of persons whose substantial interests may be affected by such agency decisions are not waived, unless they have failed to petition for a
120.57...
...In McDonald v. Department of Banking and Finance,
346 So.2d 569, 577 (Fla. 1st DCA 1977), we said, Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
...McDonald,
346 So.2d at 577 (emphasis supplied). This language, which is followed by a discussion of the right of persons whose substantial interests are affected by agency action to a
120.57 hearing, means that Section
120.57 is generally not implicated in proceedings under Section
120.565....
...When a petition for declaratory statement is limited to a narrow question "as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only," Section 120.565 (emphasis supplied), there will normally be no person, other than the petitioner, who will be affected by the declaratory statement....
...s not applicable here, is "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency... ." (Emphasis supplied). Conversely, Section 120.565, Florida Statutes, provides that a declaratory statement is merely intended to "set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only." (Emphasis supplied)....
...mply with the provisions of Section
120.54 governing rulemaking. Accordingly, we set aside the declaratory statement and remand this cause to the Board for further proceedings in accordance with this opinion. ZEHMER and MINER, JJ., concur. NOTES [1] Section
120.565, Florida Statutes....
...[4] The final order denying the optometrists' petition did not assert an absence of disputed issues of fact, nor do the appellees so contend on appeal. See McDonald v. Department of Banking and Finance,
346 So.2d 569, 578 (Fla. 1st DCA 1977). [5] See Section
120.52(12)(b) and the first sentence of Section
120.57. [6]
120.565 Declaratory statement by agencies....
...Section
120.57(1)(a) requires formal hearings under
120.57 to be conducted by hearing officers of the Division of Administrative Hearings. Since the Board is part of the Department of Professional Regulation, the
120.57(1)(a) 1 exception to this requirement was not applicable. [9] See Section
120.565, Florida Statutes.
CopyCited 14 times | Published | Florida 1st District Court of Appeal
...to the applicability to some of the appellants of certain descriptive phrases defining "financial institution" in section 626.988(1)(a). Such a declaration might arguably have been sought from the department via a petition for declaratory statement, section 120.565, Florida Statutes (1983)....
CopyCited 14 times | Published | Court of Appeals for the Eleventh Circuit | 2017 WL 632740, 2017 U.S. App. LEXIS 2747
...al professionals who have to ascertain their meaning. Nor has the Board issued a declaratory statement dealing with FOPA’s application to a particular doctor’s unique set of circumstances, as it is allowed to do under Florida law. See Fla. Stat. § 120.565 ; Fla....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...t the hearing officer's conclusion that these specific statutory delegations of rulemaking authority inhibit, rather than authorize, the Board's power to adopt definitional rules. Our conclusion is further supported by the fact that the Board, under section 120.565, Florida Statutes (1983), is required to give declaratory statements with regard to the meaning of the terms contained within the statute or rules promulgated by the Board....
CopyCited 13 times | Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 191, 2003 Fla. LEXIS 272, 2003 WL 747419
...nications, LLC. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. We affirm the decision of the Public Service *449 Commission for the reasons expressed below. BACKGROUND On May 1, 2001, Level 3 Communications, LLC (Level 3), [1] pursuant to section 120.565, Florida Statutes (2001), and rule 28-105.002, Florida Administrative Code, filed a petition for declaratory statement requesting a determination from the Florida Public Service Commission (PSC) concerning items to be included in gross operating revenues from intrastate commerce....
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 1995 WL 407774
...cing contractor." [1] As a result, a controversy *1094 has arisen within the pool service industry concerning the need for a contractor's registration or certificate to perform basic pool cleaning. Cepcot petitioned for a declaratory statement under section 120.565....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...assigned its interest in the subleases to San Souci, a partnership. In late 1980, San Souci determined to exercise its contractual right to raise the rent on its subleases. The condominium unit owners, through their condominium association, sought a Section 120.565, Florida Statutes (1979), [2] declaratory statement from the Division in order to preclude San Souci from raising the rent by exercising the escalation *1119 clause in the sublease....
...he previous sublessor, Gulf Florida, to the sublessees, condominium unit owners. Resulting was a new obligation owed by San Souci, and the applicability of section
718.401(8) to the lease and sublease. Accordingly, the division declared, pursuant to section
120.565, that by virtue of section
718.401(8), San Souci could not exercise its escalation clause. On appeal, San Souci raises six points for our review. Point I challenges the jurisdiction of the division in a section
120.565 declaratory proceeding to determine the issue of novation. [2] San Souci argues that section
120.565 grants the division the authority to interpret statutory provisions only, and not to involve itself in assignments of leases between private parties. On the contrary, we point out that section
120.565 contemplates the division's determining whether a particular statutory provision applies to the particular petitioner....
...necessarily factual, issues. The division did nothing more than to properly comply with our mandate. In Point II, San Souci questions whether it was denied due process of law when the division refused to grant its request for an evidentiary hearing. Section 120.565 does not specifically provide for an evidentiary hearing but does direct each agency to "provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements." Rule 7-3.01(4)(a)2, Florida Adminis...
...For the purposes of this section, an escalation clause is any clause in a condominium lease which provides that the rental under the lease shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index. [2] Section 120.565 states in relevant part: Declaratory statement by agencies Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...District Court of Appeal of Florida, First District. November 19, 1979. Rehearing Denied December 21, 1979. *33 Kathy Hamilton and Stephen Maher, Miami, for appellants. George Waas, Tallahassee, for appellee. PER CURIAM. This appeal raises questions regarding the construction and applicability of Section 120.565, Florida Statutes (declaratory statements by administrative agencies)....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1988 WL 138497
...Joe's property, authorized by section
161.053(2); or a section
120.57 challenge of the Department's denial of any permit it may seek. In each case, the *1125 agency's decision would be reviewable by this court under section
120.68, Florida Statutes. St. Joe might also have sought a declaratory statement under section
120.565 regarding the applicability of section
161.053 to its land, which would have been reviewable by this court....
...L imposed on St. Joe's property, which would then be recorded in the Gulf County public records. A successful review of the CCCL under section
161.053(2) would also result in a modified rule, as would a declaration of the Department's opinion, under section
120.565, that section
161.053 is not applicable to St....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1991 WL 75657
...ule or order." State ex rel Dep't of Gen. Serv. v. Willis,
344 So.2d 580, 584 (Fla. 1st DCA 1977). Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...rongful discharge finding in the case before us is neither a claim for "compensation" nor "benefits" as those terms are used in Chapter 440. The order appealed in this case is likewise not properly entered by a deputy commissioner under Chapter 120. Section
120.565 provides for declaratory statements by way of agency opinion and final agency action; however, §
440.021 establishes that deputy commissioners are exempt from Chapter 120 and shall not be considered an agency or a part thereof. We find no authority for imbuing a deputy commissioner with "agency status" for the limited purpose of §
440.205 adjudications, and we therefore conclude that such adjudications may not be made under §
120.565, since that statute expressly requires agency action....
...In short, the determination of wrongful discharge under Section
440.205 is very closely related to the mainstream of workers' compensation law in Chapter 440. I consider also that the deputies' specific authorization to make findings under Section
440.205 lies in Section
120.565, providing: Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements....
...e same manner as provided for rules in s.
120.54(1)(a), and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action. Originally, the Department of Administration interpreted Section
120.565 as allowing the use of a declaratory statement "before any wrong [was] actually ......
...stence of a controversy, question or doubt. Fla. Admin. Code Rule 28-4.05 (emphasis supplied). The deleted language from the original rule, as well as the above underscored language of the new rule, indicates that a declaratory statement pursuant to Section 120.565 can now be used to resolve a controversy in situations where the alleged harm or damage has already been consummated. Moreover, it is evident that factual issues can be resolved in a 120.565 proceeding since Florida Administrative Code Rule 28-4.07(1) provides: The agency may, at its discretion, hold a hearing to dispose of a petition submitted pursuant to Section 120.565, F.S....
...In my judgment, were we to allow the deputy to issue a finding under Section
440.205, there would not result as the e/c argues an unfeasible and unprecedented bifurcation of an action between an administrative body and the circuit court. Section *128
120.565 expressly states that a declaratory statement is final agency action....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2002 WL 1070896
...physicians, equipment and facilities, and that PPA will use its efforts to support recruitment of physician employees and acquire additional equipment and facilities. On July 11, 2000, Interlachen filed a petition for declaratory relief, pursuant to section 120.565, with the Board....
...It alleged that as a result of the Bakarania affirmance in the first district, the legality of its contract with PPA is unclear because of the management fee arrangements with PPA, and thus a finding by the Board that it is illegal could subject the doctors involved in Interlachen to disciplinary action by the Board. Section 120.565(1) provides that a 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....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 8 Educ. L. Rep. 537
...for the 1981-82 school year. On April 22, 1981, Wahlquist filed a two count petition for administrative hearing and affirmative relief. Count I requested a
120.57(1) hearing concerning the transfer, and Count II sought a declaratory statement under Section
120.565 (Florida Statutes), concerning Wahlquist's right to be reemployed by the Board under the automatic reinstatement provisions of Section 231.36(1), Florida Statutes (1979)....
...e school year 1981-82. Because of our resolution of the issues presented by the Board's ruling on Count II, we find it unnecessary to dwell at length upon procedural niceties. The Board concedes that it did not comply with the notice requirements of Section 120.565, Florida Statutes, but urges that the error was harmless....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...1st DCA 1978) ("These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not if a substantially affected party timely invokes Section
120.57(1) or (2) remedies."). In addition, at about this time, he filed a petition for declaratory statement with DOE, pursuant to section
120.565, Florida Statutes, requesting that the Department identify any rules it had adopted or declare any policy it had formulated involving the designation of foreign language as a required course for a Bright Futures Scholarship; identify...
CopyCited 5 times | Published | Supreme Court of Florida | 2004 WL 2201732
...d; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrative...
...Subdivision (c)(2)(B)(vii), which refers to "any decision, opinion, order, or report by the presiding officer," was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1988 WL 122616
...Marrero has the option of seeking an informal
120.57(2) hearing. Alternatively, if the only issue is one of law as to whether the action taken is reasonably implied from those powers specifically delegated, he could petition the agency for a declaratory statement pursuant to Section
120.565, Florida Statutes, directing the agency to issue a declaratory statement in order to "set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the p...
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1995 WL 264116
...Light Co. ALLEN, Judge. The appellant challenges the validity of a declaratory statement issued by the Department of Community Affairs (the department). We conclude that the declaratory statement exceeds the scope of authority granted to agencies by section 120.565, Florida Statutes, and we therefore set aside the declaratory statement. Section 120.565, Florida Statutes, provides in pertinent part: A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Johns River Power Park, and what effect, if any, section
212.051, Florida Statutes (1983), may have on limiting exemptions otherwise available under section
212.08(5)(c). Florida Power & Light Company and Jacksonville Electric Authority sought and obtained from the Department of Revenue a declaratory statement pursuant to section
120.565, Florida Statutes (1983), concerning the section
212.08(5)(c) exemption from Florida sales tax on purchases of certain items to be used in the construction of the St....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...of Health and Rehabilitative Services, Tallahassee, appellee. Ronald W. Brooks of Brooks, Callahan & Phillips, Tallahassee, for Apalachee Community Mental Health Services, Inc., appellee. JOANOS, Judge. This is an appeal from a declaratory statement issued pursuant to Section 120.565, Florida Statutes, by the Department of Health and Rehabilitative Services ("HRS")....
...and services. "A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only." Section 120.565, Florida Statutes....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1616
...McVoy of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant. Julia D. Cobb, Asst. Gen. Counsel, Tallahassee, for appellee. DAVEY, P. KEVIN, Associate Judge. Little Munyon Island, Inc. (LMI) appeals from a declaratory statement issued by the Department of Environmental Regulation (DER) pursuant to Section 120.565, Florida Statutes (1983), declaring that LMI would be required to seek a fill permit before placing concrete anchors in Lake Worth....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 178
...MILLS, Judge. Manasota-88, Inc. (M-88) appeals final administrative orders of the Department of Environmental Regulation (DER) denying its petitions for a hearing pursuant to Section
120.57, Florida Statutes (1983), and for a declaratory statement pursuant to Section
120.565, Florida Statutes (1983)....
...The final order adopted the recommended order, rejecting the exception on the ground that no agency action implementing the alleged nonrule policy had occurred. During the pendency of the Section
120.57 request, M-88 sought a declaratory statement from DER pursuant to Section
120.565 as to the applicability of the air pollution permit statutes to the phosphate industry in general; M-88, with Lyons, then sought a second declaratory statement as to their applicability to Gardinier in particular. Both petitions were denied because they sought a declaration as to the effect of the statutes on third parties, contrary to Section
120.565. The petitions for declaratory statement were correctly denied. Section
120.565 provides for an agency's opinion "as to the applicability of a specified statutory provision ......
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...State,
377 So.2d 32 (Fla. 1st DCA 1979). In Couch, decisions under the declaratory *240 judgments statute were utilized in determining the availability and scope of the remedies in declaratory statement proceedings under the Administrative Procedures Act, §
120.565, F.S., which is also involved here....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...Smith and Frank E. Matthews of Hopping, Boyd, Green & Sams, Tallahassee, for appellant. Thomas A. Bell, Tallahassee, for appellee. MILLS, Judge. All Seasons Resorts, Inc. (A-S) appeals from a declaratory statement, entered by appellee (Division) pursuant to Section 120.565, Florida Statutes (1983), finding the provisions of Chapter 721, Florida Statutes (1983), "Real Estate Time-Share Plans," applicable to A-S' operations in Florida....
...A-S' sales activity in Florida ceased after the Division informed A-S that it must comply with Chapter 721, governing the sale of real estate time-share plans. On 7 March 1984, A-S filed with the Division a petition for declaratory statement pursuant to Section 120.565 seeking a declaration that Chapter 721 was inapplicable to it. (Pursuant to Section 120.565, a declaratory statement sets out the agency's opinion as to the applicability of a specific statutory provision as it applies to the petitioner in his particular set of circumstances only.) A-S based its arguments against the applicability of Chapter 721 primarily on the definitional portions of the chapter....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 2146986
...in Lennar's agreement is void as against public policy. For the reasons that follow, we hold that the Division was without authority to interpret and declare void Lennar's contractual arbitration provision in a declaratory statement proceeding under section 120.565 and to announce a general policy of far-reaching applicability against arbitration provisions in a declaratory statement proceeding. Accordingly, we reverse. Section 120.565(1) provides: 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....
...Lennar is a builder and developer of residential condominiums. The purchase and sale agreement utilized by Lennar in selling condominiums includes a provision requiring that disputes between Lennar and a condominium purchaser be resolved by binding arbitration. [1] Pursuant to section *52
120.565(1), Lennar filed a petition for declaratory statement seeking the opinion of the Division as to whether §§
718.111(3),
718.303, and
718.506, Florida Statutes, or any other provision of Chapter 718, Florida Statutes, prohibit a mandatory and...
...4th DCA 2003), which is not accorded in a declaratory statement proceeding. Florida Optometric Association v. Department of Professional Regulation, Board of Opticianry,
567 So.2d 928, 936 (Fla. 1st DCA 1990). The authority of the Division to issue declaratory statements is limited by section
120.565 to a determination "as to the applicability of a statutory provision ......
...at 154; see also Weston,
857 So.2d at 283 (recognizing that a court determines the validity of an arbitration provision and whether it is unconscionable or not). In summary, we conclude that this case involves issues which cannot be determined in a section
120.565 proceeding and that the Division lacked the authority to declare void the appellant's condominium purchase and sale agreement....
...ied, and, more to the point, they had "no prospective application to any other contract-only the specific project involved in the particular location." Id. at 258. Because the Division in the present case did only that which it was required to do by section
120.565, Florida Statutes (2002), i.e., issue a declaratory statement "as it applies to the petitioner's particular set of circumstances," its action can hardly be described as "an agency statement of general applicability," as defined in section
120.52(15)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...Since we find petitioner lacks the requisite standing before this court, we decline to address this issue. The petition is denied. On November 23, 1976, Sarasota County (County) filed a petition for declaratory statement with the Department of Administration (Department) pursuant to Section 120.565, Florida Statutes (Supp....
...ce, in conjunction with their relationship to the DRI process incorporated in the Environmental Land and Water Management Act, Chapter 380. The Department contends the County had no right to obtain an administrative declaratory statement pursuant to Section 120.565 since the County's petition only presented an abstract question for determination....
...The potential impact upon petitioner's interests must be alleged in order for petitioner to show the existence of a controversy or doubt. Thus an open-ended mechanism exists for examining the allegations of a petition for a declaratory statement, pursuant to Section 120.565, to ascertain the interest of a party....
...[4] Assuming, as we have, the County's right to the declaratory statement, the second facet of this procedural analysis concerns the interpretation of Section
120.68, Florida Statutes (Supp. 1976) and the DRI provisions of Chapter 380 as they both relate to standing for purposes of judicial review. The last sentence of section
120.565, dealing with declaratory statements, states, "Agency disposition of petitions shall be final agency action." In conjunction with this provision Section
120.68 provides in part, "A party who is adversely affected by final agency action is entitled to judicial review......
...dicial review of the declaratory statement. This court, I note, has previously denied the respondent's motion to dismiss on jurisdictional grounds. I would hold the declaratory statement issued by the respondent constituted final agency action under Section 120.565, Florida Statutes (Supp....
...ponse to the County's petition. In its Motion to Appear as Amicus, the League asserts it was aware of the County's intention to seek review of this question, but chose to forego an appearance as a party because of the potential expense involved. [3] § 120.565, Fla....
...(Supp. 1976) was, prior to 1975, incorporated as part of §
120.56, Fla. Stat. (1975). In 1975 the legislature amended §
120.56 and deleted that portion of the statute pertaining to the issuance of declaratory statements. That deleted subsection became §
120.565....
...However, prior to the amendment creating the separate section dealing with declaratory statements, the Administration Commission enacted Fla. Admin. Code Rule 28-4.05, which is denominated "Purpose and Use of Declaratory Statement." That rule is, then, now applicable to § 120.565....
...This administrative rule does not confer procedural or substantive rights on a party seeking a declaratory statement. Instead, the rule explains the meaning and utilization of this administrative device. [4] It is clear that petition for a declaratory statement under § 120.565 may take on a more formal nature if a hearing is held as authorized by Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1995 WL 302319
...The purpose of a declaratory statement is to: set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in [t]his particular set of circumstances only. § 120.565, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 856
...an undivided equal share in the ownership of the common elements so that all units will share equally in the common expenses. The dissenting unit owners filed a petition for declaratory statement under the Administrative Procedure Act, specifically, section 120.565, Florida Statutes (1985), asking the Division to answer the question whether it was a violation of Chapter 718 to allow the Association to be a plaintiff in this reformation case and whether or not the use of condominium funds could be used for attorney's fees and costs in the reformation action....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...nforce its position. After such a hearing Hobe could appeal the agency's final order pursuant to §
120.68, Florida Statutes if Hobe lost before the agency. Alternatively, Hobe could have petitioned the agency for a declaratory statement pursuant to §
120.565, Florida Statutes and Rule 7-3.01 Florida Administrative Code....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...asked of it in the petitions had general applicability to the pari-mutuel industry, thus requiring rulemaking, the Division overstepped administrative *591 bounds when it issued the declaratory statement. [2] Declaratory statements are controlled by section 120.565, Florida Statutes (Supp.1996), subsection (1) of which provides: [3] "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...
...employee. See Patricia A. Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L.Rev. 965, 1052 (1986). The drafters of the Florida APA adopted an innovative solution to this problem by creating the declaratory statement procedure under section 120.565, Florida Statutes. The current statute provides: 120.565 Declaratory statement by agencies. (1) 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 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. § 120.565, Fla....
...In subsection (1), the statute creates the right to "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." § 120.565(1), Fla....
...*593 In subsection (3), the statute requires the agency to "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 [Legislature's administrative procedures] committee." Id. § 120.565(3)....
...Equally clearly, the Legislature required publication of the resulting declaratory statement precisely becauseassuming the agency is operating evenhandedlythe interpretation announced in the declaratory statement will be applied to others who are similarly situated. The point is that in enacting section 120.565, the Legislature created an important tool to vindicate the individual rights of individual citizens....
...The citizen has a right under the statute to get a clear, binding answer from the agency on how the agency's statute and rules apply to that individual citizen. The citizen not only has a right to an answer, but also a right to an answer within a time certain: ninety days. See § 120.565(3), Fla....
...In taking the position it does, the majority opinion fails to give effect to the 1996 amendments to the APA. The majority opinion acknowledges that the pre-1996 statute had said that a petitioner could request a declaratory statement "as it applies to the petitioner in his or her particular set of circumstances only." § 120.565, Fla....
...d within the declaratory statement. As we are setting aside the declaratory statement we reach no conclusions on the correctness of the opinions expressed therein. [3] Prior to its amendment in 1996, by section 17 of chapter 96-159, Laws of Florida, section 120.565 read in pertinent part: "A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his or her particu...
...of Opticianry,
567 So.2d 928, 937 (Fla. 1st DCA 1990). In my view, those cases misread the statutory intent. The earlier statute allowed a petition for declaratory statement "as it applies to the petitioner in his or her particular set of circumstances only." §
120.565, Fla....
...pothetical question unrelated to his personal situation." Dore, supra, at 1048. As suggested by Professor Dore's analysis, the Florida Optometric line of cases read too much into the pre-1996 phrase "his or her particular set of circumstances only." § 120.565, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...In this regard, DER contends Falls Chase should have first applied to DER for dredge and fill permits raising the jurisdictional issue in that proceeding followed, if necessary, by administrative appeal and appeal to this court under Section
120.68. It is also suggested that the declaratory statement procedure under Section
120.565 was an available remedy....
...APA; it specifically was required, if asked, to declare and demonstrate, through an order reviewable by this Court if necessary, any applicability that chapter 403 may have in the particular circumstances prevailing at Upper Lake Lafayette. Sections 120.565, .68....
...That is to say, Falls Chase knew all it needed to know, on March 21, 1979, in order to write an effective petition for a declaratory statement, subjecting the Department's statutory claims to chapter 120 disciplines and eventually to direct linear review by this Court. Sections 120.565, .68, Fla. Stat. (1979). Section 120.565 speaks in these terms of declaratory statements: Declaratory statement by agencies....
...Agency disposition of petitions shall be final agency action. (Emphasis added.) *805 That the legislature invests declaratory statements with a particular role in the Florida APA scheme, and with particular significance, is evidenced by its use of the imperative "shall" four times in section 120.565: the agencies shall provide by rule for declaratory statements; those declarations shall state the agency's opinion of how a specified statute applies to a particular individual in his particular circumstances; notice of the agency's...
...egular section
120.68 appeal to a district court of appeal. These legislative imperatives lie heavily upon Florida's executive agencies, in marked contrast, for example, to the loosely drawn, loosely enforced parallel section of the federal APA. [6] Section
120.565 allows no room for delay or evasion in the agency's response....
...agency like the Department to declare formally the basis for the Department's asserted regulatory powers in the project; the Department must declare; and in rapid order a district court of appeal will remedy any excessive assertion of jurisdiction. Section
120.565 thus provides a broad declaratory remedy, whatever the agency and whatever the issue of statutory application, much like the Division of State Planning's "binding letter of interpretation" which states the application of section
380.06 regional impact standards to proposed developments....
...rsy or doubt. (Emphasis added). In a footnote containing the majority's lone reference to the adequacy of chapter 120 remedies and the principle requiring their exhaustion, there is an unexplained statement that "the availability of this remedy [the section 120.565 declaratory statement] is doubtful" because of the phrase, "before any wrong has actually been committed," in the Department's Rule 17-1.119....
...The Department had no doubt of the availability of this remedy, nor did Falls Chase. In the Department's motion to dismiss and memorandum of law submitted to *807 the trial court on October 2, 1979, the Department stated: Plaintiffs have the right to request a declaratory statement from the Department, pursuant to Section 120.565, Florida Statutes....
...e and fill jurisdictional limits until the Appellees literally die" (p. 22); "It is identical to the situation with which Joseph K. was faced in his search for justice in Kafka's unfinished novel, The Trial " (p. 22). All this from litigants to whom section 120.565 and the Department's rules offered a clearly effective remedy from March 1979 onward, requiring nothing but a request from Falls Chase....
...er by national textbook writers who know no other source of law, should not be swallowed by Florida courts. First, as indicated ante n. 6, federal law is handicapped by the absence of a reliable declaratory statement remedy, available as of right in section 120.565 to resolve questions of statutory applicability (or, as the majority prefers, agency "jurisdiction") long before anyone is damaged or delayed by free-form action....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 9 Fla. L. Weekly 1689, 1984 Fla. App. LEXIS 14453
...e Board's satisfaction that he is now capable of practicing medicine with reasonable skill and safety as required by Section
458.331(3), Florida Statutes." In July, 1983, Griffith filed with the Board a petition for declaratory statement pursuant to Section
120.565, Florida Statutes, in which he sought a statement of the criteria by which a petition for reinstatement would be evaluated by the Board and the criteria for the determination of when Dr....
...r these things." Eventually, on February 22, 1984, the Board issued a declaratory statement, the second order appealed in this consolidated appeal. The Board's February 22 order found that Griffith was entitled to a declaratory statement pursuant to Section 120.565, Florida Statutes....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 496653
...WSLG bears the risk of loss with respect to all of its material and equipment at a job site. However, the prime contractor is ultimately liable to the DOT for completion of the work. In this case, WSLG petitioned the Department for a declaration under section
120.565, Florida Statutes (1993), concerning the impact of sections
212.05 and
212.02(10)(g), Florida Statutes (1993), and sections (10) and (41) of rule 12A-1.071, Florida Administrative Code (1993), on WSLG's business....
...WSLG asserts that its entire road construction business, including the construction and maintenance of temporary traffic control patterns, is a nontaxable service, and thus, may not be divided into separate components, one a taxable rental and the other a nontaxable service as suggested by the Department. Section 120.565, Florida Statutes (1993), provides in pertinent part as follows: Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements....
CopyCited 2 times | Published | Supreme Court of Florida | 1996 WL 548949
...d; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes, (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrativ...
...Subdivision (c)(2)(B)(vii), which refers to "any decision, opinion, order, or report by the presiding officer," was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 2478, 1989 Fla. App. LEXIS 5924, 1989 WL 124571
...The practice of allowing simultaneous, dual administrative proceedings was condemned in Fox v. State Bd. of Osteopathic Medical Examiners,
395 So.2d 192 (Fla. 1st DCA 1981), in which we held that declaratory statement proceedings brought pursuant to section
120.565 of the APA could not be pursued on issues simultaneously litigated in a section
120.57 adjudicatory proceeding....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Hearings, Department of Administration, denying the Department's motion to dismiss respondents' rule-challenge petition pursuant to Section
120.56, Florida Statutes (1977). Respondents contend that the Department has issued a declaratory statement, Section
120.565, which constitutes an illicit rule not promulgated in accordance with Section
120.54....
...e present point, the Department urges, rightly we think, that the Administrative Procedure Act and its Section
120.56 do not vest jurisdiction in a hearing officer to invalidate or obliterate an agency's declaratory statement, regularly issued under Section
120.565, as in whole or part a rule....
...out the requisite formality of rules. State Dep't of Admin. v. Stevens,
344 So.2d 290 (Fla. 1st DCA 1977). But neither the letter nor the purposes of the Act justify subjecting formal agency statements, in declaratory statements rendered pursuant to Section
120.565, or in orders entered pursuant to Sections
120.57 and .59, to such collateral scrutiny and review by hearing officers. Section
120.565 declaratory statements constitute "final agency action" and they are reviewable, in the same way as orders entered in Section
120.57 proceedings, by timely petition in a district court of appeal....
...dings under other provisions of the Act. See State ex rel. Greenberg v. Florida State Board of Dentistry,
297 So.2d 628 (Fla. 1st DCA 1974), cert. dismissed,
300 So.2d 900 (Fla. 1974). Respondents have expressed concern that persons not parties to a Section
120.565 proceeding, who therefore are not in a position to seek judicial review of the resulting declaratory statement, may later be adversely affected by the agency's enforcement against them of its interpretation of law thus announced....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1996 WL 124204
...Robert Crow, M.D., timely appeals from a final administrative order of *1161 appellee, State of Florida, Agency for Health Care Administration, Board of Medicine, rendered March 16, 1995. The final order is a declaratory statement issued pursuant to section 120.565, Florida Statutes and constitutes a final agency action reviewable on appeal....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1999 WL 141792
...5 Condominium, appeals an order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile homes (Division) in which the Division determined it could not provide Grippe the relief requested under its limited power to issue declaratory statements. § 120.565(1), Fla....
...if he meets specific criteria. See Woodlake Redevelopment Corp. v. Woodlake Condominium Ass'n of Marco Shores, Inc.,
671 So.2d 253, 254 (Fla. 2d DCA 1996). AFFIRMED. POLEN, and SHAHOOD, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur. NOTES [1] Section
120.565 provides in pertinent part:
120.565....
...nces. (2) The petition seeking a declaratory statement shall state with particularity the petitioner's set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances. § 120.565, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2006 WL 26181
...ring ("the Division"), from responding to a petition for declaratory statement from State Representative Ellyn Bogdanoff ("the Bogdanoff petition"). We deny the petition for writ of prohibition because the Division has not exceeded its jurisdiction. Section 120.565(1), Florida Statutes (2005), states that 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...
...Carneal,
873 So.2d 562 (Fla. 5th DCA 2004) *1022 (denying a petition for writ of prohibition where the trial court merely scheduled a hearing and there was no action from which to determine whether the lower tribunal exceeded its jurisdiction). Pursuant to section
120.565(3), the Division has the authority to deny the request for a declaratory statement....
..."The purpose of a declaratory statement is to address the applicability of a statutory provision or an order or rule of the agency in particular circumstances." Chiles v. Department of State, Div. of Elections,
711 So.2d 151, 154 (Fla. 1st DCA 1998). We note that section
120.565(1) does not authorize an agency to construe a constitutional amendment....
...Although the Bogdanoff petition asks the agency to declare that the constitutional amendment is of no force and effect until implementing legislation has been adopted, the Division has the authority to deny the request for a declaratory statement pursuant to section 120.565(3)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 765659
...Each of the other litigants (Governor, Comptroller, and House of Representatives) has pertinent constitutional or statutory responsibilities in no way inferior to those of the Secretary. As a "declaratory statement" within the meaning of the Administrative Procedure Act, § 120.565, Fla....
CopyCited 1 times | Published | Supreme Court of Florida
an appeal from any proceeding pursuant to section
120.565, Florida Statutes (declaratory statements)
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...28-2.03, and the Commission must also maintain a current subject-matter index, identifying for the public any rule or order issued or adopted after January 1, 1975, including the functional equivalents of orders such as that which we review today, declaratory statements issued by the Commission pursuant to Section
120.565, and Commission determinations of presumptive and effective parole release dates, parole rescission determinations, parole revocation orders, and other final agency decisions which are equivalent to "orders." Section
120.52(2), (9)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 3711, 2000 WL 313914
...Therefore, the record before us consists only of the written pleading filed by Great House containing certain stipulated facts, transmittal letters, and the order based on those stipulated facts entered by the Department. No eviden-tiary hearing was involved in this procedure. See § 120.565, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2006 WL 617948
...The Board concluded that "under the specific facts of the petition, as set forth above, the provisions described violate §
463.014 and Rule 64B13-3.008(2)(3)(5)(9)(10) and (15) by permitting a corporation to exercise control over various aspects of Petitioner's practice of optometry." These appeals followed. Section
120.565, Florida Statutes (2004), provides in part: (1) 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....
...Haines was no longer faced with the possibility of administrative litigation for violating the law. Although Dr. Haines' counsel argued below that the declaratory statement was necessary so that Dr. Haines could use it for negotiation purposes with respect to future leases, neither section 120.565 nor rule 28-105.001 contemplates this type of need....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...We are asked on this appeal to review the Florida Board of Cosmetology's decision that the practice of esthetics requires a cosmetologist's license under chapter 477, Florida Statutes (1979). Appellant, an esthetician licensed in another state, requested the Florida Board of Cosmetology to issue a Section 120.565 declaratory statement determining whether the providing of skin care services known as "esthetics" is exempt from those activities defined and regulated by the Board under chapter 477....
CopyCited 1 times | Published | District Court of Appeal of Florida | 19 Educ. L. Rep. 1240, 1984 Fla. App. LEXIS 14243
SHARP, Judge. Lambert, a principal in the Marion County School District, and the Marion County School Board (School Board), appeal from a non-final order of the circuit court which enjoined them from conducting a hearing pursuant to section 120.565, Florida Statutes (1983), to determine whether Lambert had a one or a three year contract of employment with the School Board....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 10143, 2010 WL 2732873
...eatment of the merits is no endorsement of the procedural path that brought the case here. In July of 2003, before the City filed in circuit court seeking declaratory judgment, it had received what was in effect at least a declaratory statement, see § 120.565, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2002 WL 31875008
...extension of the water and sewer lines under Chapter 163 of the Florida Statute, but had been deprived of same when the County and DOT refused to process a plan amendment. The First District set forth in its opinion the applicable statute and rule, section 120.565, Florida Statutes (1997) and Florida Administrative Code Rule 28-105.001, and then concluded that the petition should not have been dismissed....
...declaratory statement." Id. at 158. The County then filed a motion for clarification, asserting that the opinion was "susceptible of an interpretation that the court has determined [Friends] are `substantially affected persons' within the meaning of section 120.565, Florida Statutes (1997)." Id....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2007 WL 1238640
...The Final Order denying the petition for declaratory statement therefore is reversed, and the case is remanded for further proceedings consistent with this opinion. REVERSED and REMANDED for further proceedings. WOLF, VAN NORTWICK, and LEWIS, JJ., concur. NOTES [1] Section 120.565(1), Florida Statutes (2005), contains the following provision regarding the right of a party to seek a declaratory judgment from an agency: (1) Any substantially affected person may seek a declaratory statement regarding an agency's o...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2000 WL 51820
...Part III of the response states: III. A declaratory statement may only be issued on "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 " (emphasis added) Section 120.565(1), Florida Statutes (1997)....
...umstances. Rather, appellants purportedly sought a declaration concerning the application of a statute or rule to the circumstances of St. Johns County and the Florida Department of Transportation. The Department recognizes that the 1996 revision of section 120.565 deleted the word "only" in reference to the petitioner's issues, but urges the revision left intact the requirement that the statutory provision, rule or order of the agency apply to the petitioner's particular set of circumstances. The Department asserts its final order of dismissal properly held the issue raised must apply to the petitioner's particular set of circumstances. The statute applicable, section 120.565, Florida Statutes (1997), provides: 120.565....
...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. Florida Administrative Code Rule 28-105.001, the rule implementing section 120.565, provides: 28-105.001 Purpose and Use of Declaratory Statement....
...rests. In Chiles v. Department of State, Division of Elections , this court explained: The purpose of a declaratory statement is to address the applicability of a statutory provision or an order or rule of the agency in particular circumstances. See § 120.565, Florida Statutes (1996)....
...Moreover, the reasoning employed by the agency in support of a declaratory statement may offer useful guidance to others who are likely to interact with the agency in similar circumstances.... See Chiles,
711 So.2d at 154-155. The court further explained that the notice provision in section
120.565(3) "accounts for *158 the possibility that a declaratory statement may, in a practical sense, affect the rights of other parties." See id....
...s' petition for declaratory statement. As grounds for clarification, St. Johns County alleges the court's opinion is susceptible of an interpretation that the court has determined appellants are "substantially affected persons" within the meaning of section 120.565, Florida Statutes (1997)....
...tion of appellants' standing to bring this action. Accordingly, we clarify that the decision of this court filed January 25, 2000, does not determine, either expressly or implicitly, that appellants are substantially affected persons for purposes of section 120.565, Florida Statutes (1997)....
...Rather, that issue is to be considered on remand for consideration of the merits of the petition. LAWRENCE and VAN NORTWICK, JJ., Concur. NOTES [1] In Chiles v. Department of State, Division of Elections,
711 So.2d 151, 154 (Fla. 1st DCA 1998), the court concluded that pursuant to the 1996 revisions to section
120.565(1), Florida Statutes, there is no longer a requirement that issues raised in a petition for declaratory statement apply only to the petitioner.
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 13328, 2004 WL 1969687
...HMO plan, we agree with OIR that the petition for declaratory statement should be dismissed. See B.J.L. v. Department of Health and Rehabilitative Services,
558 So.2d 1078 (Fla. 1st DCA 1990)(ruling that a “petition for declaratory statement under Section
120.565 is not the appropriate means to challenge agency decisions”)....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 1920, 1984 Fla. App. LEXIS 14946
...Still, as a general rule, it is improper to seek judicial relief before an available, adequate administrative remedy has *1079 been exhausted. See, e.g., Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc.,
361 So.2d 695 (Fla.1978); Odham v. Foremost Dairies, Inc.,
128 So.2d 586 (Fla.1961). As Eastern points out, section
120.565 of the APA affords the Authority an alternative remedy. Section
120.565 reads in pertinent part: Declaratory Statement by Agencies....
...opportunity to contest whether Eastern possessed “an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees.” Moreover, forcing the Authority to resort to an administrative proceeding pursuant to section 120.565 during the ongoing proceeding in the circuit court between Eastern, the Authority, and a third party, Host, instead of allowing the Authority to seek a declaratory judgment in the same court pursuant to section 562.-46 of the Beverage...
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2081, 1985 Fla. App. LEXIS 15739
...hearing officer’s conclusion that these specific statutory delegations of rulemak-ing authority inhibit, rather than authorize, the Board’s power to adopt definitional rules. Our conclusion is further supported by the fact that the Board, under section 120.565, Florida Statutes (1983), is required to give declaratory statements with regard to the meaning of the terms contained within the statute or rules promulgated by the Board....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2064, 1986 Fla. App. LEXIS 9837
...Yet, the hospital authority fears that if the guidelines contained in the declaratory statement are left untouched, they will become binding in later determinations with respect to particular individuals. The declaratory statement is final agency action. Fla.Stat. § 120.565 (1983)....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2134, 1988 Fla. App. LEXIS 4053, 1988 WL 93290
...Following a hearing, the Commission issued a declaratory statement on July 23, 1987 denying appellant’s motions to dismiss, continue and remand, and determining that Lovett and Fletcher are eligible to participate in the ORP based upon the entire amount of their salaries, whether paid by the university or by the county. Section 120.565, Florida Statutes, provides: A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances....
...lf to the program. We conclude, therefore, that the extent of county extension agent employees’ eligibility to participate in ORP was a matter within the university’s scope of interest and activity. With respect to the fair hearing issue, supra, section 120.565, Florida Statutes, requires only that “[t]he agency shall give notice of each petition and its disposition in the Florida Administrative Weekly.” Florida Administrative Code Rule 28-4.007 states that “[t]he Agency may, at its discretion, hold a hearing to dispose of a petition submitted pursuant to Section 120.565, F.S....
...Section
121.23, Florida Statutes, providing for the powers and duties *381 of the Retirement Commission, specifically relates to “applications for eligibility for the State University System optional retirement program as provided in s.
121.35.” Section
120.565 provides that “[a] declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of...
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 15012, 2010 WL 3893912
...mergency on or after September 3, 2006 and contracts entered into on or after September 3, 2006." On August 13, 2008, Clyde Lightbourn ("Lightbourn"), through counsel, filed a Petition for Declaratory Statement ("Petition") with the Department under section 120.565, Florida Statutes (2008), which allows "[a]ny substantially affected person" to "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...
...a determination as to whether certain provisions are applicable to the Agreement. [2] Specifically, one of the questions posed by Lightbourn is as follows: "Is AmeriLoss entitled to receive 33 1/3% fee pursuant to the Agreement?" In accordance with section 120.565(3), the Department provided public notice of *110 the Petition in the September 26, 2008, Florida Administrative Weekly....
...rtment failed to personally notify it of the Petition. Although it is clear that the Petition involves matters that would affect AmeriLoss' interest, we note that the Department was not required to personally notify AmeriLoss. Rather, as required by section 120.565(3), the Department was only required to "give notice of the filing of *111 [the][P]etition in the next available issue of the Florida Administrative Weekly." The notice the Department filed in the September 26, 2008, Florida Administrative Weekly satisfied this requirement. Moreover, AmeriLoss argues that it was not required to intervene as Florida Administrative Code 28-106.205 uses the word "may," not "shall," and therefore, it may still invoke this Court's jurisdiction. We disagree. Pursuant to section 120.565, a person seeking to intervene in a proceeding in which a party is seeking a declaratory statement under section 120.565, must establish that: (1) his "substantial interest will be affected by the proceeding" and (2) he "desire[s] to become [a] part[y]" to the proceeding....
...he Administrative Procedure Act; (3) he was a party to the action which he seeks to appeal; and (4) he was adversely affected by the action."); see also State, Dep't of Health & Rehabilitative Servs. v. Barr,
359 So.2d 503, 505 (Fla. 1st DCA 1978) ("Section
120.565 declaratory statements constitute `final agency action[.]'") Accordingly, we grant the Department's motion to dismiss AmeriLoss' appeal....
...s Declaratory Statement, if the Declaratory Statement is adversely applied against AmeriLoss in any subsequent proceeding in which it is a party, it may then seek judicial review in due course. See Barr,
359 So.2d at 505. Appeal dismissed. NOTES [1] Section
120.565 provides: (1) 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....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 11333, 1992 WL 312767
...nd gas in the sovereign waters of Florida, was applicable to areas of sovereign waters described in leases Coastal had obtained in the 1940s from the state which allow such activity. A state agency’s authority to issue declaratory statements under Section 120.565, Florida Statutes (1991), is limited to issuing opinions “as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner.” (Emphasis added.) We decline to expand section 120.565 to authorize an agency to issue a statement concerning the applicability of a policy adopted by the agency at a public meeting....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2002 WL 31487618
...Moreover, the DABT letter that is the source
of the disputed interpretation is not an official opinion and is not binding on the State. There is
an administrative process for obtaining an official determination which has not been undertaken.
See FLA. STAT. ANN. § 120.565(1).
6
Whether wineries may ship directly to consumers via privately owned (or leased)
vehicles is not altogether clear....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Moreover, the DABT letter that is the source of
the disputed interpretation is not an official opinion and is not binding on the State. There is an
administrative process for obtaining an official determination which has not been undertaken.
See FLA. STAT. ANN. § 120.565(1).
6
Whether wineries may ship directly to consumers via privately owned (or leased)
vehicles is not altogether clear....
CopyPublished | Florida 4th District Court of Appeal | 1979 Fla. App. LEXIS 16103
to the applicability of” chapter 447, see section
120.565, Florida Statutes (1978 Supp.), erred in finding
CopyPublished | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 18219
...28-2.03, and the Commission must also maintain a current subject-matter index, identifying for the public any rule or order issued or adopted after January 1, 1975, including the functional equivalents of orders such as that which we review today, declaratory statements issued by the Commission pursuant to Section
120.565, and Commission determinations of presumptive and effective parole release dates, parole rescission determinations, parole revocation orders, and other final agency decisions which are equivalent to “orders.” Section
120.52(2), (9)....
CopyPublished | Florida 4th District Court of Appeal | 2002 WL 31557666
...This case appears to be one of first impression in our courts. The issue is whether the ALJ correctly interpreted section
120.56(4), Florida Statutes, in holding that an administrative proceeding commenced to challenge an agency statement as an unadopted rule under section
120.565(4) becomes moot when the administrative agency complies with the requirements set forth in section
120.56(4)(e)....
CopyPublished | Florida 3rd District Court of Appeal | 8 Educ. L. Rep. 898, 1982 Fla. App. LEXIS 22233
Weekly on March 6, 1981, in compliance with Section
120.565, Florida Statutes (1979). On March 26,1981
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 16874, 2009 WL 3786537
...In this case it is clear that the Clarification of the Arbitrator speaks to agencies that were never made a part of the arbitration. 6.... Parrish never sought to address the issue of the State of Florida Insurance Health Care Plans through the administrative remedies available to him under Section 120.565, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2015 WL 1963786
...d agency action
(PAA) procedure, before proposed agency action is decided upon. But the PSC
denied OPC’s petition for declaratory statement on grounds that the petition failed
to meet the requirements for obtaining a declaratory statement under section
120.565, Florida Statutes (2014)....
....156(2), F.S., and
Rule 28-106.206, F.A.C., authorize the Office of Public
Counsel to conduct discovery prior to the issuance of the
Commission’s written Notice of Proposed Agency
Action.
Citing section 120.565(1), Florida Statutes (2014),1 OPC asserted that a
declaratory statement was “necessitated by inconsistent and conflicting decisions
1
“Any substantially affected person may seek a declaratory statement
regarding a...
...et the
requirements for declaratory statements for four reasons: because the petition for
declaratory statement in effect challenged the validity or sought review of the
WMSI discovery order; because the petition did not conform to the intent of
section 120.565, Florida Statutes; because the petition failed to allege a present,
ascertainable set of facts; and because the petition requested a general advisory
opinion.
In the WMSI case, Water Management Services, Inc....
...Nobody denies that PAA rate cases are
regularly filed.
OPC is properly seeking the PSC’s “opinion as to the applicability of a
statutory provision, or of any rule or order of the [PSC], as it applies to [OPC’s]
particular set of circumstances.” § 120.565(1), Fla....
...2d at 154 (“While the issue [raised in a petition
for declaratory statement] must apply in the petitioner’s particular set of
circumstances, there is no longer a requirement that the issue apply only to the
petitioner.” (comparing current version of section 120.565, Florida Statutes to prior
12
version of statute)); see also Inv....
...adjudicate contractual obligations.
888 So. 2d at 54–55 (“We know of no statute
which confers authority on the Division to declare a party’s contract void.”).
Although we recognized that the “authority of the Division to issue declaratory
statements is limited by section
120.565 to a determination ‘as to the applicability
of a statutory provision ....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 4849, 1998 WL 216047
BARFIELD, Chief Judge. Appellant challenges a declaratory statement of the Department of Insurance (DOI), pursuant to section
120.565, Florida Statutes (1995), which determined that the sale of its home health care plan (the Plan) would be the sale of “insurance” as defined in section
624.02 and “health insurance” as defined in section
627.603....
...declaratory statement terminated its authority to transact business. The Department of Insurance (DOI) responds that appellant never requested a hearing prior to disposition of its request for declaratory statement, and that none was required under section 120.565 or Florida Administrative Code Rule 4-121.043(2)....
CopyPublished | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 19730
...Dudley of Aloia, Dudley & Roosa, Cape Coral, for appellant. Jim Smith, Atty. Gen., Chris D. Rolle, Asst. Atty. Gen., William L. Boyd, IV, Wilson Jerry Foster, Tina Hipple, Tallahassee, for appellees. WENTWORTH, Judge. This is an appeal from appellee Board's § 120.565 declaratory statement in response to a question propounded by two petitioning associations, "The Society of Ophthalmic Dispensers" and "Optical Dispensers of North Florida." We find that the associations were not proper parties to petition...
...applied to a particular set of circumstances involving the associations themselves. The individual association members who may be affected by the rule were not parties to the petition and the associations were not proper parties, as contemplated by § 120.565 and Rule 28-4.05, Florida Administrative Code, to obtain a declaratory statement on behalf of their individual members....
...Florida Education Association/United AFT-AFLCIO,
378 So.2d 893 (Fla. 1st DCA 1979). The order appealed is reversed. SHIVERS, J., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur. NOTES [1] We note, without deciding, that even if the associations had the requisite interest for §
120.565 purposes, the case would then present an issue as to these unincorporated associations' legal capacity to institute such proceedings....
CopyPublished | Supreme Court of Florida
...We
disagree and affirm the PSC’s order.
-6-
(1) The City Had Standing to Request the Declaration
As an initial matter, the County argues that the City lacked standing to seek
the declaratory statement from the PSC. Section 120.565, Florida Statutes,
governs the requirements for requesting a declaratory statement from an agency
such as the PSC, and it provides in pertinent part:
(1) Any substantially affected person may seek a declaratory
statemen...
...ncomitant request to modify a
territorial agreement, resolve a territorial dispute, or address an imminent threat of
uneconomic duplication of generation, transmission, and distribution facilities does
not defeat the City’s standing. Nothing in section 120.565 nor chapter 366
purports to so limit the PSC’s authority to issue declaratory statements concerning
the applicability of territorial orders issued pursuant to its statutory authority....
CopyPublished | Florida 1st District Court of Appeal | 1978 Fla. App. LEXIS 16071
...rings, Department of Administration, denying the Department’s motion to dismiss respondents’ rule-challenge petition pursuant to Section
120.56, Florida Statutes (1977). Respondents contend that the Department has issued a declaratory statement, Section
120.565, which constitutes an illicit rule not promulgated in accordance with Section
120.54....
...present point, the Department urges, rightly we think, that the Administrative Procedure Act and its Section
120.56 do not vest jurisdiction in a hearing officer to invalidate or obliterate an agency’s declaratory statement, regularly issued under Section
120.565, as in whole or part a rule....
...t the requisite formality of rules. State Dep’t of Admin. v. Stevens,
344 So.2d 290 (Fla. 1st DCA 1977). But neither the letter nor the purposes of the Act justify subjecting formal agency statements, in declaratory statements rendered pursuant to Section
120.565, or in orders entered pursuant to Sections
120.57 and .59, to such collateral scrutiny and review by hearing officers. Section
120.565 declaratory statements constitute “final agency action” and they are reviewable, in the same way as orders entered in Section
120.57 proceedings, by timely petition in a district court of appeal....
...edings under other provisions of the Act. See State ex rel. Greenberg v. Florida State Board of Dentistry,
297 So.2d 628 (Fla. 1st DCA 1974), cert. dismissed,
300 So.2d 900 (Fla.1974). Respondents have expressed concern that persons not parties to a Section
120.565 proceeding, who therefore are not in a position to seek judicial review of the resulting declaratory statement, may later be adversely affected by the agency’s enforcement against them of its interpretation of law thus announced....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 14343
from respondent a declaratory judgment under §
120.565, Florida Statutes. The question presented by petitioner
CopyPublished | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 19385
...Florida Parole and Probation Commission, supra. The Commission may, in its own discretion, answer prisoners’ requests for information, but such communications are not final agency action and this Court will not treat them as declaratory statements as described in § 120.565, Fla.Stat. (1981). 5 We find, under the circumstances of these cases, that we lack jurisdiction to review the Commission’s action here. Accordingly, the motions to dismiss are granted. BOOTH, SHIVERS and JOANOS, JJ., concur. . Section 120.565, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 760, 1986 Fla. App. LEXIS 7057
...utes (1983), may have on limiting exemptions otherwise available under section
212.08(5)(c). Florida Power & Light Company and Jacksonville Electric Authority sought and obtained from the Department of Revenue a declaratory statement pursuant to section
120.565, Florida Statutes (1983), concerning the section
212.08(5)(c) exemption from Florida sales tax on purchases of certain items to be used in the construction of the St....
CopyPublished | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 2209, 2009 WL 690807
...nd factual dispute all arose from the POA’s response to his petition. He asserts that the DBPR should merely answer the questions in his petition as they relate to chapter 718, Florida Statutes (2006), ignoring all of the issues raised by the POA. Section 120.565, Florida Statutes (2006) governs the right to seek a declaratory statement under the Administrative Procedure Act, explaining that “[a]ny 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.” § 120.565(1), Fla....
...Hawkins,
362 So.2d 926, 928 (Fla.1978) (noting that a declaratory statement is not the appropriate mechanism to interpret a constitutional provision); PPI, Inc. v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering,
917 So.2d 1020, 1022 (Fla. 1st DCA 2006) (stating that “section
120.565(1) does not au *405 thorize an agency to construe a constitutional amendment”)....
CopyPublished | Supreme Court of Florida
...objections; all matters placed on the record after an ex parte
communication; the official transcript; and any decision, opinion,
order, or report by the presiding officer.
(C) Declaratory Statements. In an appeal from any
proceeding pursuant tounder section 120.565, Florida Statutes, the
record shallwill consist of the petition seeking a declaratory
statement and any pleadings filed with the agency; all notices
relating to the petition published in the Florida Administrative
Register; the declar...
CopyPublished | Supreme Court of Florida
...objections; all matters placed on the record after an ex parte
communication; the official transcript; and any decision, opinion,
order, or report by the presiding officer.
(C) Declaratory Statements. In an appeal from any
proceeding pursuant tounder section 120.565, Florida Statutes, the
record shallwill consist of the petition seeking a declaratory
statement and any pleadings filed with the agency; all notices
relating to the petition published in the Florida Administrative
Register; the declar...
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 1735, 1990 WL 28180
...itions for declaratory statements. We affirm. Appellant filed two petitions for declaratory statement seeking to challenge the correctness of actions taken by HRS. Appellant sought to compel HRS to expunge her name from child abuse registry records. Section 120.565, Florida Statutes, allows a party to use a petition for declaratory statement to determine an agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to petitioner in a particular set of circumstances. The petitions filed by appellant did not seek declaratory statements interpreting the law, but instead challenged the correctness of actions taken by HRS. A petition for a declaratory statement under Section 120.565 is not the appropriate means to challenge agency decisions....
CopyPublished | Supreme Court of Florida | 1979 Fla. LEXIS 4698
declaratory statement procedure prescribed by section
120.565, Florida Statutes (1977),1 and, consequently
CopyPublished | Court of Appeals for the Eleventh Circuit | 2014 WL 3695296, 2014 U.S. App. LEXIS 14192
...Florida law provides that “[a]ny 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.” Fla. Stat. § 120.565(1)....
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 11567
...1st DCA 1978) (“These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not if a substantially affected party timely invokes Section
120.57(1) or (2) remedies.”). In addition, at about this time, he filed a petition for declaratory statement with DOE, pursuant to section
120.565, Florida Statutes, requesting that the Department identify any rules it had adopted or declare any policy it had formulated involving the designation of foreign language as a required course for a Bright Futures Scholarship; identify...
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18414
...ervices. “A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only.” Section 120.565, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 197, 1988 Fla. App. LEXIS 173, 1988 WL 2620
PEARSON, TILLMAN, Associate Judge, (Retired). Royster Company appeals a declaratory statement issued by the Florida Department of Revenue. See § 120.565 Florida Statutes (1985)....
CopyPublished | Florida 3rd District Court of Appeal | 1983 Fla. App. LEXIS 18484
appellee pursuant to appellant’s request under §
120.565, Florida Statutes. We affirm. Appellant is a manufacturer
CopyPublished | Florida 1st District Court of Appeal | 1979 Fla. App. LEXIS 14168
...ings under §
120.56, and rely upon State Dept. of Health, etc. v. Barr,
359 So.2d 503 (Fla. 1st DCA 1978). We agree with respondents that the facts in Barr are not analogous and therefore not controlling. In Barr , certain parties participated in a §
120.565 proceeding following which the agency issued a declaratory statement....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 773, 1992 WL 16630
WARNER, Judge. This is an appeal from a declaratory statement pursuant to section 120.565, Florida Statutes (1989), rendered by the Division of Pari-Mutuel Wagering, regarding the payout of a trifecta pool....
...ver all of the combinations so that the 1-4, 6-11 combination actually covered all other horses. Based on the foregoing, the Division declared that the parimutuel pool had been properly paid, and that Gulfstream was not authorized to honor ticket B. Section 120.565, Florida Statutes (1989), provides for agency determination of declaratory statements....
CopyPublished | Supreme Court of Florida | 30 Fla. L. Weekly Supp. 84, 2005 Fla. LEXIS 154, 2005 WL 242690
...d; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrative...
...Subdivision (c)(2)(B)(vii), which refers to “any decision, opinion, order, or report by the presiding officer,” was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while *231 subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes....
CopyPublished | Court of Appeals for the Eleventh Circuit
...doctors and medical professionals who have to ascertain their meaning. Nor has
the Board issued a declaratory statement dealing with FOPA’s application to a
particular doctor’s unique set of circumstances, as it is allowed to do under Florida
law. See Fla. Stat. § 120.565; Fla....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2697, 1985 Fla. App. LEXIS 17146
...The Federation of Mobile Home Owners of Florida, Inc. (the Federation) appeals the dismissal by the Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes (the Division) of the Federation’s petition for a declaratory statement pursuant to section 120.565, Florida Statutes (1983)....
...Department of Health & Rehabilitative Services,
417 So.2d 753 (Fla. 1st DCA 1982). The Division argues that Florida Optometric Association v. Department of Professional Regulation,
399 So.2d 6 (Fla. 1st DCA 1981), is the only case in point as to requirements for declaratory statements under section
120.565....
...ne of the major legislative purposes of the new Administrative Procedure Act.”
412 So.2d at 352-53 (footnote omitted). The Division also argues that neither Florida Home Builders nor Farmworker involved a petition for a declaratory statement under section
120.565....
...However, just as the First District in Farmworker found that “the standing requirements for associations as set forth in Florida Home Builders should be extended to section
120.57(1) proceedings,”
417 So.2d at 754 , we conclude that those same standing requirements should apply to section
120.565 proceedings....
...ncy action.
412 So.2d at 353 . We have no reason to believe that there is any determinative difference between the foregoing purpose of the rule challenge proceeding in Florida Home Builders and the purpose of this proceeding by an association under section
120.565, both proceedings having been initiated under the Administrative Procedure Act....
...actually involved and that an actual present practical need for a declaratory statement must be shown. The Division cites Couch v. State,
377 So.2d 32 (Fla. 1st DCA 1979), as standing for the proposition that to obtain a declaratory statement under section
120.565 the “case or controversy” principles for declaratory judgments under chapter 86, Florida Statutes, must be followed....
...ber affected. Also, in Florida Home Builders the Florida Supreme Court referred to the “case or controversy” requirement as to declaratory judgment suits before it set forth its above quoted standing requirements for declaratory statements under section 120.565....
CopyPublished | Florida 1st District Court of Appeal | 2015 WL 9584834
...applicability of agency-enforced law to a particular set of facts”) (internal quotations
and footnotes omitted).
Prior to 1996, the authority of an agency to issue a declaratory statement was
limited to issues that applied only to the party seeking the declaration because section
120.565, Florida Statutes (Supp....
...ed). The
cases construing the pre-1996 version of the statute recognized this limitation on
agency authority to issue declaratory statements. See, e.g., Regal Kitchens, Inc. v.
Fla. Dep’t of Rev.,
641 So. 2d 158, 161-62 (Fla. 1st DCA 1994) (“[Section
120.565,
Florida Statutes (1989)] limits the use of a declaratory statement to an expression of
the agency’s position on an issue raised by an individual petitioner in a particular set
of facts.”); Fla....
...nted
where the petition has clearly set forth specific facts and circumstances which show
that the question presented relates only to the petitioner and his particular set of
circumstances”).
In 1996, the word “only” was deleted from section 120.565, see ch....
...He first pointed out that the racetracks invited the error
that they raised on appeal. Id. at 592 (Cope, J., dissenting) (“The racetracks asked
for a declaratory statement. The racetracks got a declaratory statement.”). He then
explained that section 120.565 would be “nearly useless” if a declaratory statement
could not be issued if it impacted anyone other than the petitioner....
...2d at 153-54).
The Florida Supreme Court quashed the Third District’s decision and adopted
Judge Cope’s dissenting opinion as the “correct view” of the law. Investment Corp.,
747 So. 2d at 386. The Court explained that the 1996 amendments to section
120.565 were “meant to dispel any confusion that only the most narrowly drawn
declaratory statement having an absolutely unique application was permissible.” Id.
at 383....
... issuing the declaratory statement in this case. Indeed, if SCMHR was of the view
that the issue raised in its petition could only be addressed by rulemaking, it should
have petitioned for rulemaking under section
120.54(7) instead of a declaratory
statement under section
120.565....
...1st DCA 2010), we reversed an order dismissing a
petition for declaratory statement seeking clarification of a statute enforced by the
agency. In doing so, we observed that the agency’s refusal to answer the question
raised in the petition “serves no logical end and thwarts the purpose behind section
120.565 by foreclosing [the petitioner] from securing ‘definitive binding advice as
to the applicability of agency-enforced law to a particular set of facts.’” Id....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 20237, 2010 WL 5306462
...WOLF, J. On consideration of the Motion for Clarification filed by appellee, we withdraw the previous opinion and substitute the following. ExxonMobil petitioned the Department of Agriculture (the Department) for a declaratory statement pursuant to section
120.565, Florida Statutes (2009), seeking *757 clarification of Florida’s Price Gouging Law (embodied in section
501.160, Florida Statutes (2009))....
...ial entity to another. In Florida Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering v. Investment Corp. of Palm Beach,
747 So.2d 374 (Fla.1999), the supreme court broadened the previously narrow interpretation of section
120.565, Florida Statutes concerning when declaratory statements were available....
...y statements as to one would almost invariably be of interest to others in the very limited group. Id. at 385. The court warned against declining to provide declaratory statements in these situations, noting this “hypertech-nical interpretation of section 120.565” would serve “no logical end.” Id....
...of Palm Beach v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. & Prof'l Regulation,
714 So.2d 589 , 594 n. 7 (Fla. 3d DCA 1998) (Cope, J., dissenting). 1 Further, refusing to answer the question serves no logical end and thwarts the purpose behind section
120.565 by foreclosing ExxonMobil from securing “definitive binding advice as to the applicability of agency-enforced law to a particular set of facts.” Inv....
...its intention to initiate rulemaking. We are likewise cognizant of this court’s holding in Lennar Homes, Inc. v. Department of Business & Professional Regulation,
888 So.2d 50 (Fla. 1st DCA 2004), which recognized the broader interpretation of section
120.565 but found a declaratory statement may not go so far as to announce “broad agency policy” which is akin to a rule....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 17010
...As to petitioner’s question concerning under what circumstances, pursuant to Ch. 122, he may be considered no longer disabled, we leave that for resolution by the hearing officer. The declaratory statement is REVERSED. MILLS, Acting C. J., and MELVIN, J., concur. . Section 120.565, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15825
...nt to Sections
120.56 and
120.57, Florida Statutes (1975). Respondent denied petitioner’s request upon the ground that the issue was moot, contending that petitioner had already been given a written agency declaratory statement pursuant to Chapter
120.565, Florida Statutes (1975). Section
120.565, Florida Statutes (1975), provides: “Declaratory statement by agencies Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statement as to the applicability of any statutory provision or of any rule or order of the agency. Agency disposition of petitions shall be final agency action.” As mandated by Section
120.565 the Florida Citrus Commission adopted the following Rule: “Petition for agency declaratory statement on applicability of statute, rule or order....
...or any rule or order of the Department of Citrus, to a set of facts as specifically set forth in the written petition.” We hold that the action of the Florida Citrus Commission on March 17, 1976, was not a “declaratory statement” under Chapter 120.565, Florida Statutes (1975) and Rule 20-102.06, Florida Administrative Code....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3819476, 2014 Fla. App. LEXIS 11923
...Analysis
“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.” § 120.565(1), Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jan 27, 2023
...Then,
in 2018, the Division changed its position. In response to a petition
from an out-of-state wine retailer, the agency issued a declaratory
statement that out-of-state wine retailers were exempt from the
State’s direct shipment prohibition. See Fla. Stat. § 120.565....
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 730, 2002 Fla. LEXIS 1810, 2002 WL 1981372
...d; any decisions overruling objections; all matters placed on the record after an ex parte communication; the official transcript; and any decision, opinion, order, or report by the presiding officer. (C) In an appeal from any proceeding pursuant to section 120.565, Florida Statutes (declaratory statements), the record shall consist of the petition seeking a declaratory statement and any pleadings filed with the agency; all notices relating to the petition published in the Florida Administrative...
...Subdivision (e)(2)(B)(vii), which refers to “any decision, opinion, order, or report by the presiding officer,” was added by the committee to the list of statutory requirements. Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 15406
ROBERT P. SMITH, Jr., Acting Chief Judge. Responding to a petition for declaratory statement, Section
120.565, Florida Statutes (1978 Supp.), the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation declined to answer a question as to the application of Section
565.095(5), Florida Statutes (1978 Supp.), which was predicated on an interpretation of the statute not shared by the Division....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 8197, 1995 WL 455433
PARIENTE, Judge. East Central Regional Wastewater Facilities Board (ECR) appeals from a declaratory statement issued by the Department of Community Affairs (DCA), pursuant to section 120.565, Florida Statutes (1993), on a petition filed by City of West Palm Beach for a determination of ECR’s status as a special district....
...stions concerning special district status. Having concluded that ECR was not a special district, DCA went beyond the scope of the petition by making further findings on issues not presented to it and potentially affecting entities not before it. See § 120.565, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 1946, 1985 Fla. App. LEXIS 15507
...ers. Furthermore, the Division concedes that this income is not needed to ensure the security, financial stability, or solvency of the Fund. On February 20, 1984, appellants filed their first amended petition for a declaratory statement, pursuant to Section 120.565, Florida Statutes, generally reciting the above facts, and requesting as relief from the Division the following: an acknowledgment that the trustees of the close-down trust are entitled to disbursement of all investment income from th...
...In so holding, we reiterate what the purpose of the declaratory statement is. It is simply a means of establishing “the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only.” Section 120.565....
CopyPublished | Florida 1st District Court of Appeal
...signify the point at which the administrative process has ended.
Appellant points out, however, that a “final order” under the
Administrative Procedure Act “results from a proceeding” under
one of several enumerated provisions of the Act: section
120.56
(rule challenges), section
120.565 (declaratory statements),
section
120.569 (decisions affecting substantial interests), section
120.57 (formal and informal administrative hearings), section
120.573 (mediation of disputes), or section
120.574 (summary
hearings)....
CopyPublished | Florida 1st District Court of Appeal | 1994 Fla. App. LEXIS 4101, 1994 WL 148157
...mption on that ground; and that imposition of a sales or use tax upon the purchase of such property and upon rental of guest rooms does not constitute duplicate taxation. Accordingly, we affirm. In April 1992, appellants filed a petition pursuant to section 120.565, Florida Statutes (1991), and rule 12-2.010, Florida Administrative Code (1991), seeking a declaratory statement....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 3772, 1998 WL 171478
ALTENBERND, Judge. Sun Coast Home Care, Inc. (Sun Coast), appeals a declaratory statement issued by the Department of Insurance pursuant to section 120.565, Florida Statutes (Supp.1996)....
CopyPublished | District Court of Appeal of Florida
agency’s interpretation of a statute or rule, §
120.565, Fla. Stat.
