Administrative Law Section Newsletter

Vol. XXVIII, No. 2 Elizabeth W. McArthur, Editor December 2006

What? The Administration Commission May Grant An Exemption To the APA? by Robin Rosenberg and Lawrence E. Sellers, Jr.

Yep; a little-used provision in of the APA. An exemption and any (Fla 1st DCA, August 8, 2006). The the Administrative Procedure Act prescribed alternate procedures ter- J.M. decision reversed APD’s order (APA) authorizes the Administra- minate 90 days after the then-current denying J.M. a DOAH hearing on his tion Commission, upon application of or next regular legislative session. challenge to APD’s decision to reduce an agency, to exempt any process or See § 120.63, Fla. Stat. his benefits under the Medicaid waiv- proceeding governed by the Act from On August 22, 2006, the Agency er for persons with developmental one or more of the requirements of for Persons with Disabilities (“APD”) disabilities. Prior to the J.M. decision, the Act, if certain conditions are met. filed a petition with the Administra- APD referred all of its administrative The Commission may not exempt an tion Commission seeking an excep- hearings to the hearing officers in the agency from any requirement until it tion to section 120.57(1). The petition Department of Children and Family establishes alternative procedures to was a direct response to the First Services. achieve the agency’s purpose, which District Court of Appeal’s decision The First District ruled that the must be consistent with the purposes in J.M. vs. APD, Case No. 1D06-0183 explicit language in the developmen- See Exemption, page 11 From the Chair by Booter Imhof

In my first column, I invited the available for purchase (see order form “data about data.” It is a hidden level membership to become more in- on page 3). of extra information that is automati- volved with the section. I am renew- In addition to the excellent presen- cally created in a computer file such ing that call. Please visit our website tations on the substantive law issues, See Chair’s Message, page 2 at: http://www.flaadminlaw.org for there were some very interesting more information. I mentioned that issues and information in the presen- one of the ways to get involved was tations. Elizabeth Tarbert, the Direc- INSIDE: to attend the 2006 Pat Dore Adminis- tor of the Ethics Department of The trative Law Conference. Many of you Florida Bar, had several interesting Appellate Case Notes...... 4 did and the conference was a huge comments to make. One of the most Pat Dore Conference Keynote Speech...... 6 success. Andy Bertron and Seann disturbing was the issue of metadata. Meet the DOAH Administrative Law Frazier did an excellent job organiz- I had heard the term, but did not Judges ...... 8 ing the conference which was held in know anything about it. According to Agency Snapshots: Tallahassee on October 19 and 20, an article in the June 2004 issue of Department of Education...... 11 2006. Of course, Jackie Werndli, our LAWPRO magazine entitled, “Beware Commission On Ethics...... 12 section administrator, was invalu- the Dangers of Metadata,” by Dan Minutes – June 23, 2006...... 13 able. Conference audiotapes/cds are Pinnington, metadata is described as Minutes – September 8, 2006...... 14 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006

Chair’s Message of State made a presentation on the annotations for the different parts from page 1 new Florida e-Rulemaking website. of Chapter 120 and includes DOAH Scott’s presentation was inter- cases, court cases, articles, and At- rupted several times by spontaneous torney General opinions. The site has applause from the crowd. Why, you many more features and I suggest you as a Word or WordPerfect document. ask? Scott and his staff have been go and play with it. Scott indicated While some metadata can be easily hard at work on JAPC’s website and that his office is always ready to add seen within the program that cre- the results are fantastic. The website a case, opinion, or article that is not ated the file, most hidden metadata can be found at http://www.japc. listed if you are aware of one. must be viewed using a binary file state.fl.us/. I am going to list just I mentioned the new website for editor. However, sometimes this hid- some of the things you can do on the Department of State e-Rulemak- den data can be viewed accidentally, the website. A rule number can be ing. That site can be found at http:// for example, when a WordPerfect file inserted in the search box and it will flrules.com. I will talk more about this is converted to a Word file. return a link to the JAPC records on site in a future column. The article explains more about the rule. This link will give you all Another item I would like to talk to how to view this data and can be the events that have occurred on that you about is the Law School Liaison found at http://www.practicepro. rule. In his presentation, Scott used Committee chaired by Cathy Sellers. ca/LawPROmag/metadata.pdf. The rule 67-57.001 by the Florida Hous- Cathy did a wonderful job in organiz- article also notes why lawyers should ing Finance Corporation to illustrate. ing a panel discussion at the FSU Law be aware and maybe concerned The events include links to the Notice School last month. The panel consisted about metadata. When a document of Rule Development, Notice of Pro- of Bob Cohen, Chief Administrative Law is shared electronically, via e-mail posed Rulemaking, correspondence Judge; Scott Boyd, Executive Director or CD for example, the document from JAPC to the agency and from and General Counsel for the Joint Ad- includes both visible and invisible the agency to JAPC, and other events. ministrative Procedures Committee; information. Some of the metadata Keywords can also be searched and Andy Bertron, private practitioner and can often include confidential in- will return all rules currently under Chair-Elect of the Executive Council; formation and could be potentially review with the word in the title or Mary Ellen Clark, Assistant Attorney damaging or embarrassing if seen by text of the rulemaking notice. The General; the moderator, Cathy Sellers; others. The article gives suggestions same is true for phrases. If a chal- and me. The panelists spoke to the law on reducing or eliminating the meta- lenge has been filed, there is a link students about how we got involved data from your files. The Florida Bar to the DOAH case information page in administrative law and some of our Professional Ethics Committee has and if a final order has been entered, experiences. We explained what admin- issued an opinion on metadata. The there is a link to that, too. Finally, istrative law is and what administrative opinion can be found at http://www. there is a link to the DCA case docket lawyers do from the perspectives of the floridabar.org/tfb/TFBETOpin.nsf/ if an appeal has been filed. Rules can Legislature, DOAH, and administra- b2b76d49e9fd64a5852570050067 also be searched by agency or by all tive law practitioners. The panel was a7af/0a1b5e3a86df495 a8525714e0 agencies. One of the most awesome well received and it generated a lot of 05dd6fd?OpenDocument. links is to the Legal Research section. interest in the practice of administrative There were two more presenta- This section gives you an annotated law. Cathy has indicated she would like tions that had practical everyday Chapter 120 administrative law da- to have similar programs at the other information that I think you will find tabase, amendments to Chapter 120 law schools. The University of Florida useful. Scott Boyd made a presen- by year and Chapter 120 as it ap- is covered, but we need contacts at the tation on the Joint Administrative peared in that year, and other links. other law schools. Please contact Cathy Procedure Committee’s website and The annotated Chapter 120 admin- or Jackie Werndli if you are interested in representatives from the Department istrative law database also provides organizing a panel discussion in conjunc- tion with a law school in your area.

Patrick L. “Booter” Imhof is the This newsletter is prepared and published by the Administrative Law Section Staff Director for the Senate Com- of The Florida Bar. mittee on Regulated Industries. He has been employed by the Florida Patrick L. (Booter) Imhof ([email protected])...... Chair Legislature for over 25 years in both J. Andrew Bertron, Jr. ([email protected]) ...... Chair-elect the Senate and the House of Repre- sentatives. Mr. Imhof received his B.A. Elizabeth W. McArthur, Tallahassee ([email protected])...... Secretary/Editor degree in Political Science from the Seann M. Frazier ([email protected])...... Treasurer University of Florida in 1972 and his Jackie Werndli, Tallahassee ([email protected])...... Program Administrator J.D. degree from South Texas College of Law, Houston, Texas in 1978. He Colleen P. Bellia, Tallahassee ([email protected])...... Layout is a member of The Florida Bar and the State Bar of Texas. He is currently Statements or expressions of opinion or comments appearing herein are those of the Chair of the Administrative Law the contributors and not of The Florida Bar or the Section. Section of The Florida Bar.

 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter 2006 Pat Dore Administrative Law Conference Audiotapes/CD Available Course No. 0480R • Variances and Waivers • Dark Side of the Moon: A Survey of Bankruptcy CLE CREDITS Process and Issues Affecting Regulatory Agencies • Attorneys Fees in APA Cases CLER PROGRAM (Max. Credit: 11.0 hours) • Florida e-Rulemaking General: 11.0 hours • Reception Honoring Judges Ethics: 1.0 hour • The 1996 Amendments to the APA: A Ten Year Retrospective CERTIFICATION PROGRAM (Max. Credit: 8.5 hours) • Administrative Law Case Update Business Litigation: 8.5 hours • The New (Improved?) Revised Model State City, County & Local Government: 8.5 hours Administrative Procedure Act Seminar credit may be applied to satisfy both CLER and Board Certification requirements • Ethics: Case Studies and Discussion in the amounts specified above, not to exceed the maximum credit. Refer to Chapter 6, Rules Regulating The Florida Bar, for more information about the CLER and Certification • DOAH: All the Process That’s Due and Then Some Requirements. • The Top Ten Cases Since the 1996 Amendments to Prior to your CLER reporting date (located on the mailing label of your Florida Bar News) the APA you will be sent a Reporting Affidavit or a Notice of Compliance. The Reporting Affidavit must be returned by your CLER reporting date. The Notice of Compliance confirms • What is JAPC Up to Now? your completion of the requirement according to Bar records and therefore does not • Rulemaking, Then and Now need to be returned. You are encouraged to maintain records of your CLE hours.

TO ORDER AUDIO/CD OR COURSE BOOKS, MAIL THIS FORM TO: The Florida Bar, Attn. CLE Programs, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5831. Name______Florida Bar #______Address______City/State/Zip______Phone #______JMW: Course No. 0480R METHOD OF PAYMENT (check one):  Check enclosed made payable to The Florida Bar  Credit Card (Advance registration only. May be faxed to 850/561-5816)  MASTERCARD  VISA Exp. Date ____/____(mo/yr.) Signature:______Name on Card:______Card No.______COURSECOURSE BOOK BOOK — AUDIOtapes/cd — AUDIO cd — ON-LINE — ON-LINE — PUBLICATIONS— PUBLICATIONS TO ORDER AUDIOTAPES/CD OR COURSE BOOKS, fill out the order form above, including a street address for delivery.Please add sales tax to the price of tapes or books. Tax exempt entities must pay the non-section member price. Please include sales tax unless ordering party is tax-exempt or a nonresident of Florida. If this order is to be purchased by a tax-exempt organization, the course book/tapes must be mailed to that organization and not to a person. Include tax-exempt number beside organization’s name on the order form.

❑ COURSE BOOK ONLY ❑ AUDIOTAPES ❑ AUDIO CD Cost $30 plus tax (includes course book) (includes course book) (Certification/CLER credit is not awarded for $105 plus tax (section member) $125 plus tax (section member) the purchase of the course book only.) $120 plus tax (non-section member) $150 plus tax (non-section member) TOTAL $ ______TOTAL $ ______TOTAL $ ______

ON-LINE PROGRAMS! To view and/or listen to this and Related Florida Bar Publications can be found at http:// other courses on-line, or to download to your computer as a bookstore.lexis.com/bookstore/catalog. Click on “Jurisdictions,” “CLEtoGo,” go to www.legalspan.com/TFB/catalog.asp then “Florida” for titles.

 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006

APPELLATE CASE NOTES

by Mary F. Smallwood

Licensing importantly, the court held that the FEMC alleged that Puig had signed Oakcrest Early Education Center, failure to proceed to revocation or and sealed plans not prepared by him Inc. v. Department of Children and suspension proceedings was a clear or under his direct supervision and Families, 31 Fla. L. Weekly 2239 (Fla. denial of due process of law. that he had assisted an unlicensed 5th DCA 2006) person practice engineering. At the Oakcrest Early Education Center Adjudicatory Proceedings administrative hearing, Puig testified was involved in an incident where Stinson v. Winn, 31 Fla. L. Weekly that he had reviewed plans prepared one of the children in its center was 2203 (Fla. 1st DCA 2006) by an engineer whose license had left in a center van for two and a half Stinson, a teacher in Brevard Coun- previously been revoked and oversaw hours. The child was dehydrated and ty, appealed an order of the Education the completion of those plans. The in serious condition when admitted to Practices Commission suspending administrative law judge, based on the hospital. The child ultimately re- her teaching license for two weeks Puig’s testimony, recommended dis- covered. Oakcrest’s license to operate and placing her on probation. Stinson missal of the complaint. a day care center was due to expire on had been accused of providing inap- FEMC rejected a finding of fact June 13. The incident with the child propriate help to students taking the in the recommended order that Puig occurred on June 7. Until that time, Florida Comprehensive Assessment had not intended to assist another in the Department had been prepared Test (“FCAT”). At the hearing, Stin- the unlicensed practice of engineer- to reissue the license for another son had presented the testimony of ing, characterizing it as a conclusion year. The Department immediately one student witness while the Com- of law. issued an order denying Oakcrest’s mission had presented the testimony On appeal, the court reversed and request for an extension of the license of several other students who testified remanded. It held that FEMC did on June 8. In addition, on June 9, the that she had given them answers to not meet the requirements of Section Department entered an emergency questions or otherwise assisted them. 120.57, Fla. Stat. The court held that order suspending Oakcrest’s existing The administrative law judge entered Puig’s intention was not relevant to license. Since the license would have a recommended order rejecting the the ultimate determination; instead, expired three days after the emer- testimony of the Commission’s wit- the only basis for finding a violation gency order was issued, the Depart- nesses and accepting the testimony was the signing and sealing of the ment did not institute suspension of Stinson’s witness. The Commission plans prepared by another engineer. or revocation proceedings pursuant rejected those findings of fact. The administrative law judge’s deter- to Sections 120.569 and 120.57, Fla. On appeal, the court reversed. It mination that the plans were prop- Stat. Oakcrest appealed the emer- noted that it is the administrative erly signed and sealed was based on gency suspension order. law judge’s responsibility to weigh competent substantial evidence. Oakcrest also filed a petition for the credibility of witnesses. The fact hearing challenging the denial of its that Stinson had only one witness in Public Records request for renewal of the license. The comparison to the number of witness- Hillier v. City of Plantation, 31 Fla. L. administrative law judge entered a es presented by the Commission was Weekly 2096 (Fla. 4th DCA 2006) recommended order recommending irrelevant. Moreover, it is irrelevant Hillier, a former city councilman, denial of the license renewal. At that that there may have been competent appealed an order of the trial court hearing, the Department entered into evidence introduced to support the denying his writ of mandamus and evidence its emergency order. Commission’s position. So long as petition for injunctive relief. Hillier On appeal of the emergency sus- competent substantial evidence sup- argued that the trial court had erred pension order, the court reversed the ports the administrative law judge’s in finding that the City provided him emergency order. It rejected the ar- findings, the Commission could not access to all of the documents he gument of the Department that it reject them. requested. Hillier had made numer- would have been useless to provide ous public records requests which a Section 120.57 hearing subsequent Puig v. Florida Engineers Manage- the City had responded to; however, to the issuance of the emergency or- ment Corporation, 31 Fla. L. Week- at trial, Hillier testified that certain der since there was only three days ly 2602 (Fla. 3rd DCA, October 18, documents had not been produced. remaining. In that respect, the court 2006) The City’s witnesses, on the other noted that the introduction of the Puig challenged an administra- hand, testified that some of the re- emergency order into evidence in the tive complaint filed by the Florida cords requested did not exist and all license renewal hearing could have Engineers Management Corporation of the others had been produced to influenced the decision to deny. More (“FEMC”) disciplining his license. the extent Hillier’s request could be

 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter understood. The trial court adopted Rulemaking Board of Professional Engineers de- the City’s proposed final order ver- Financial Services Commission v. nying his application for licensure by batim. The Florida Insurance Council, Inc., endorsement. Inter alia, he argued On appeal, the court affirmed. It 31 Fla. L. Weekly 2156 (Fla. 1st DCA that the Board should have evaluated held that the issue of whether the 2006) the foreign engineering program as City produced all of the requested The Florida Insurance Council one for which accreditation by the records was one of fact, and the trial challenged certain rules of the agency Accreditation Board for Engineering judge was able to evaluate the cred- on the grounds that the agency failed and Technology was not available, as ibility of the witnesses. to follow proper procedures in the required by its own rules. Prior to the adoption of the rules. The admin- District Court’s ruling, the Board did The Coconut Grove Playhouse, Inc. v. istrative law judge found the rules conduct such an evaluation, render- Knight-Ridder, Inc., 31 Fla. L. Weekly to be invalid exercises of delegated ing the appeal moot. Ruck argued 2102 (Fla. 3rd DCA 2006) legislative authority as the Financial that the court should rule on the mer- The Coconut Grove Playhouse ap- Services Commission failed to review its of the appeal for the sole purpose pealed an order of the trial court and approve the proposed rules prior of determining his right to attorney’s requiring that it produce certain to their publication in the Florida fees. records after the Playhouse failed Administrative Weekly. The court rejected Ruck’s argu- to respond to an order of the court On appeal, the court affirmed. The ment on the basis of Lund v. Depart- requiring it to appear at a hearing court rejected the agency’s argument ment of Health, 708 So. 2d 645 (Fla. 1st with such documents. Knight-Ridder that the Commission had delegated DCA 1998). The Lund court rejected had argued that the Playhouse was a the authority to approve the rules to the request of a physician’s personal public agency. the Office of Insurance Regulation. It representative that the appellate On appeal, the court reversed. It noted that under Section 20.121(3)(c), court overturn an order of the De- concluded that the order was tanta- Fla. Stat., the Commission was the partment of Health suspending his mount to a default judgment against agency head for purposes of rule- license. The court found the appeal the Playhouse for failure to comply making. That authority could not be was moot when the physician died with a subpoena for discovery materi- delegated. prior to the court taking action on the als. appeal. Appellate Jurisdiction Point of Entry Wovas v. Tousa Homes, Inc., 31 Fla. Mary F. Smallwood is a partner J.M. v. Florida Agency for Persons L. Weekly 2330 (Fla. 2d DCA, Sep- with the firm of Ruden, McClosky, with Disabilities, 31 Fla. L. Weekly termber 8, 2006) Smith, Schuster & Russell, P.A. in its 2121 (Fla. 1st DCA 2006) Wovas and other lot owners sought Tallahassee office. She is Past Chair of J.M. appealed a decision of the arbitration by the Division of Land the Administrative Law Section and Agency for Persons with Disabilities Sales, Department of Business and a Past Chair of the Environmental (“APD”) denying him a Section 120.57 Professional Regulation, of a dispute and Land Use Law Section of The hearing on its determination reduc- with the developer regarding control Florida Bar. She practices in the ar- ing the number of hours of residential of the homeowners’ association. Sec- eas of environmental, land use, and habilitation available to him. J.M. is tion 720.311, Fla. Stat., mandates administrative law. Comments and an autistic, mentally retarded indi- binding arbitration in such cases. The questions may be submitted to Mary. vidual living in a group home. APD developer filed a petition for a writ of [email protected]. denied the request for a hearing on prohibition in the circuit court, chal- the grounds that it was exempt under lenging, inter alia, the constitutional- Section 120.80(7), Fla. Stat., which ity of Section 720.311. The lot owners exempts from Section 120.57 hear- then sought a writ of prohibition in ings held within the Department of the district court of appeal to prevent Moving? Children and Families related to cer- the circuit court from acting on the tain social and economic programs. developer’s request. Need to update On appeal, the court reversed. The The appellate court issued the writ court noted that Section 393.065(8), of prohibition. It held that the circuit your address? Fla. Stat., specifically provided that court had no jurisdiction to review The Florida Bar’s website APD clients or their representatives state administrative action unless shall have the right to a Section specifically provided by statute. In (www.flORIDabar.org) 120.57 hearing on agency decisions this case, the review was within the offers members the ability relative to the client’s initial support jurisdiction of the appellate court to update their address and/ plan or the annual review thereof. under Section 120.68, Fla. Stat. or other member informa- Without specifically addressing the extent of the exemption contained in Attorney’s Fees toin. The online form can be Section 120.80(7), the court concluded Ruck v. Board of Professional Engi- found on the web site under that the more specific statute (Chap- neers, 31 Fla. L. Weekly 2553 (Fla. 1st “Member Profile.” ter 393) controlled over the more DCA, October 16, 2006) general statute (Chapter 120). Ruck appealed a final order of the

 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006 Pat Dore Conference Keynote Speech October 20, 2006 by DOAH Chief Judge Robert S. Cohen

I am honored to stand before you can I possibly say about DOAH that and substantive issues which, I be- today to deliver the keynote address has not or will not be covered in these lieve, promotes consistency in deci- at the prestigious conference named sessions? Probably not much. sion-making. No one’s arm is twisted, after Pat Dore, a wonderful profes- I will say that I have been proud either by a supervising (or senior sor many of us enjoyed at FSU. Pat to stand at the helm of DOAH for the as we like to call them) ALJ, to rule served as a mentor to so many of past three years, for a variety of rea- a certain way, but the peer review us administrative law practitioners sons. First, I am constantly impressed process allows us not to travel down when we were just starting out. We with the quality of our ALJs. After the path to sure review and perhaps greatly miss her and know she would traveling to conferences around the reversal at the appellate court level. be proud to have her name associated country, I can easily conclude that Our ALJs are extremely independent with an annual conference devoted to ours are as qualified or more qualified in their decision-making, yet they Florida administrative practice. than those found in any other state. guard the due process rights of all My topic for today is “DOAH: All This fact is confirmed whenever we who appear before us. I am also happy the process that’s due and then some,” have an opening and I find myself to announce that we participate in and I will soon get to that. By now you flooded with applications from some the FSU College of Law’s externship have been educated in a wide variety of the finest administrative law law- program so that students get a peek of topics such as variances and waiv- yers, from both the public and private behind the Wizard’s screen where all ers, bankruptcy issues affecting agen- sectors, in the state. While the deci- the delicious baked goods are kept. cies, attorney’s fees, e-rulemaking, sion on filling a vacancy is always Any one of you practitioners who retrospectives on 10 years of amend- difficult to make, I know I cannot be has appeared before one of our ALJs ments to the APA, ethics, the new and far off because the pool of applicants, in a pro se matter can vouch for the perhaps improved Model APA, and so many of whom are in this room ALJ’s concern with the rights of the the always popular case law update today, is so strong. pro se party to a fair hearing. I am by the sub for the sub, Li Nelson. An I have been impressed by the col- sure many of you have been frus- afternoon of the top 10 cases, JAPC legiality of our ALJs. Every judge’s trated by the ALJ spending a consid- and rulemaking lies ahead, so what door is open to discuss procedural erable amount of time explaining the

State and Federal Government and Administrative Practice Certification State and federal government and administrative practice is the practice of law on behalf of public or private clients on matters including but not limited to rulemaking or adjudication associated with state or federal government entity actions such as contracts, licenses, orders, permits, policies, or rules. State and federal government and administrative practice also includes appearing before or presiding as an administrative law judge, arbitrator, hearing officer, or member of an administrative tribunal or panel over a dispute involving an admin- istrative or government action.

If you wish to apply for certification, applications must be postmarked by February 28. Visit The Florida Bar website, www.floridabar.org/certification for application and general infor- mation. The examination will be given on October 1, 2007, in Tallahassee and one additional city TBA.

You may contact the certification staff liaison Alexzina Jackson, at [email protected] or 850/561-5768, regarding eligibility, certification hours, or exam information.

 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter procedures for presenting the case, overwhelming majority of attorneys immediate access to pleadings filed even going so far as to remind the pro who practice in the field of adminis- while we are on the road. This gives se to ask questions of the witnesses, trative law are ethical, professional, us the opportunity to handle motion not give narratives and conduct de- and downright well-qualified to pres- hearings, or at least to review the bates with them. This is not an easy ent their cases on behalf of either pleadings in the evening when we task, but it is one we ALJs take most one of our agencies or their client, be are out of town to help us better serve seriously. I believe that DOAH is it a company or an individual. The the parties expeditiously. Next item: still designed to be a “people’s court” incidence of unprofessional behavior DOAH has begun handling claims where even the unrepresented can in the administrative forum is signifi- bills for the Florida Senate. We will appear and have the opportunity to cantly lower than in the state court conduct the hearings as special mas- present his or her case to an impartial setting. I am able to say this based ters, and make recommendations to arbiter of the dispute who will truly upon first-hand experience, having the senate committee which will then listen to the facts presented, even if practiced in both arenas, but also issue a final decision to be voted upon presented badly, and render a fair de- because of my experiences over the by the full Senate. Finally, we have cision following the applicable law in past several years as a member of begun handling Medicaid entitlement the case. We will not become an advo- the Second Circuit Bench/Bar Com- matters from the Agency for Persons cate for the pro se, but neither will we mittee. I can say with great certainty with Disabilities in light of the First let the opposing counsel or party take that few administrative lawyers suf- DCA’s denial of the Agency’s motion advantage of the pro se’s naiveté. This fer Bar grievances and discipline. for rehearing in the J.M. v. Agency is our role, to ensure that the concept I commend you, as representing for Persons with Disabilities case. We of “fundamental fairness,” as contem- the best and brightest of the admin- continue to seek new contracts with plated by the founders of our great istrative bar, for avoiding those situ- non-state entities, which allows us to nation, is maintained. Every party ations leading to ethical violations, reduce the cost of providing services charged with a violation of a statute lack of professionalism, and, ulti- to the state agencies. within DOAH’s jurisdiction or ag- mately, action by The Florida Bar. I The cases at DOAH continue to be grieved by the actions of an agency is am proud to serve such a group, espe- varied, interesting, and most chal- entitled, at the least, to be notified of cially when I see what happens every lenging. You will hear about some the the charges or proceedings involving day in our state courts. Let me thank more significant cases this afternoon him or her, and the opportunity to be you on behalf of all our ALJs for your when Judge Wetherell gives his top heard in those proceedings. Of course, professionalism and ethical behavior. 10, but let me tell you that any of the provision of due process extends I hope you find that we always treat our ALJs can regale you with tales to all parties represented by counsel, you with the same degree of respect. of bizarre cases that have seemed contrary to what some government Before I close, let me give you a to be common fare at DOAH, over watchdog agency may say about the brief update on what is happening at the past 30 years, as well as today. “high costs of due process.” DOAH. I’ll dispense with the Office In fact, Florida, being the fascinat- Also, with respect to getting your of Judges of Compensation Claims ing state that it is, we can apply the case scheduled and heard by an ALJ, which is undergoing major improve- words of noted columnist and author, nowhere will you find a more stream- ments, but does not affect admin- Carl Hiassen, to our work at DOAH lined process than at DOAH. I have istrative law practitioners. In the over the past decades. Hiassen says, spoken with state court judges, court adjudication of disputes program, “The weird part is how little things administrators, and court clerks who however, a lot is happening: First, have changed—Florida is as screwy are amazed at the speed with which we are close to launching what we now as it was in the 70s and 80s.” I we get our cases through the system. will call the “agency general counsel commend you all to just look at the If the parties don’t request additional screen.” This application will allow news: Elian Gonzalez, Presidential time for discovery or delay the hear- agency counsel to view a complete elections with pregnant, hanging, ing dates to accommodate their busy list of the agency’s active cases, afford and dangling chads (and, no I don’t schedules, there is no reason why al- you the ability to generate statistics mean you Judge Adams!), politicians most any case cannot proceed through which are so important to the legis- accepting gifts and mishandling cam- the process in less than 90-120 days. lature and executive branches which paign funds, alligators eating joggers Compare this with the circuit court control us, and to electronically sub- and swimmers, shark attacks in three where 180 days to trial is a rarity, mit your final orders to DOAH when feet of water, and, of course, those and occurs only where the parties they are issued. We will soon schedule ever-present (although, thank God, treat the case as expedited and al- a luncheon for the general counsels not this year) hurricanes. Now, of low no continuances. Truly, we have to fully demonstrate and launch this course, we don’t see all these cases a rocket docket at DOAH for those exciting new tool. So many of you are at DOAH, but we get our share of who need their disputes adjudicated currently using our electronic filing strange fact patterns. All I can say is expeditiously. system which we appreciate, both you keep bringing DOAH these cases I am able to make these state- for the time saved on our end since and we’ll keep providing a forum for ments about the duty of our ALJs to we no longer have to scan documents the fair and impartial adjudication ensure the parties receive due process into the system that have been e-filed, of disputes. We wouldn’t have it any because of one important fact: the but also because it gives our ALJs other way.

 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006 Meet the DOAH Administrative Law Judges Compiled by Director and Chief Judge Robert S. Cohen and Administrative Law Judge Linda M. Rigot (Part II of II)

One of the benefits of membership Name: Patricia M. Hart Prior Professional Experience: in the Administrative Law Section is Colleges, Degrees, and Years: Deputy General Counsel, Florida the opportunity to get to know the Ad- B.A., Florida State University (1969); Public Employees Relations Commis- ministrative Law Judges before whom M.S., Florida State University (1973); sion (1984-88); Associate Attorney, we practice in a variety of contexts- J.D. with high honors, Florida State University of Florida (1983); Assistant -at Section events, in seminars, and University (1981) General Counsel, Florida Department here, in print, in the Newsletter. Please Year Admitted to the Bar: 1981 of Commerce (1981-83); Assistant Gen- take this opportunity to share your Year Employed at DOAH: 1995 eral Counsel, Florida Education Asso- Newsletter with non-members and Prior Professional Experience: ciation/United (1981); Staff Attorney, encourage them to join the Section! Partner, McConnaughhay, Roland, Florida Public Employees Relations Most of the DOAH ALJs are primar- Maida and Cherr, P.A., in Tallahassee Commission (1979-81); Assistant Public ily assigned cases by geographic area (1988-95); Associate, Cummings, Law- Defender, Broward County (1975-79) for easier scheduling and travel. Some rence and Vezina, P.A., in Tallahassee Relevant Professional Activities: are assigned cases on a statewide basis (1987-88); Research aide, Florida Su- Member, Administrative Law Sec- in a specialized subject matter. The preme Court (1981-83) tion, The Florida Bar first part of this article, which appeared Relevant Professional Activities: in the September 2006 edition of this Member, Administrative Law and Name: Robert E. Meale Newsletter, gave a brief biographical Health Law Sections, The Florida Bar; Colleges, Degrees, and Years: sketch of the ALJs who hear cases in Member, Tallahassee Women Lawyers B.A. magna cum laude, Florida State the northern and middle districts of University (1973); J.D. with honors, Florida. Part II features the ALJs who Name: Eleanor M. Hunter University of Florida (1976); L.L.M., hear cases in the southern district and Colleges, Degrees, and Years: University of Florida (1982) those who specialize in hearing envi- B.A. with highest honors, Bennett Year Admitted to the Bar: 1976 ronmental and health care cases. College (1968); J.D. with honors, Florida Year Employed at DOAH: 1987 The Southern District starts with State University (1975) Prior Professional Experience: Indian River County on the north, in- Year Admitted to the Bar: 1976 Partner, Baker and Hostetler, in cludes Okeechobee County on the west, Year Employed at DOAH: 1990-2003 Orlando (1982-87); Partner, Smith, and runs south down to Key West. and 2006 Mackinnon and Mathews, in Orlando Prior Professional Experience: (1978-82); Associate, Pitts, Eubanks, Southern District Executive Director, Florida Board Ross and Rumberger, P.A., in Orlando of Bar Examiners (2003-06); Sole prac­ (1977-78); Associate, Kilpatrick, Cody, Name: Claude B. Arrington titioner/Lobbyist (1987-90); Part-time Rogers, McClatchey and Regenstein, in Colleges, Degrees, and Years: Associate, Hopping, Boyd, Green and Atlanta (1976-77) B.A., The University of the South Sams, in Tallahassee (1985-87); Associ- (1970); J.D., Florida State University ate, Mahoney, Hadlow and Adams, in Name: J. D. Parrish (1973) Tallahassee (1980-81); Administrative Colleges, Degrees, and Years: Year Admitted to the Bar: 1973 Assistant, Florida Supreme Court (1979- B.A., Furman University (1975); Year Employed at DOAH: 1989 80); Assistant General Counsel, Office J.D., Florida State University (1977) Prior Professional Experience: of the Governor (1977-79); Law Clerk, Year Admitted to the Bar: 1978 Associate and Partner, Ruden, Bar- Florida Supreme Court (1975-77) Year Employed at DOAH: 1987 nett, McClosky, Smith, Schuster and Relevant Professional Activities: Prior Professional Experience: Russell, P.A., in Tallahassee (1985-89); Member, Administrative Law Sec- Assistant Attorney General, Partner, Thompson and Arrington, in tion, The Florida Bar; Member, Na- Florida Department of Legal Affairs Quincy (1981-85); Associate, Gardner, tional Bar Association (1985-87); Associate, Potter, McClel- Shelfer, Mendelson, Duggar and Thomp- land, Griffith, Jones and Marks, P.A., son, in Quincy (1980-81); Research As­ Name: Stuart M. Lerner in Titusville (1981-85); Associate, sistant, First District Court of Appeal Colleges, Degrees, and Years: Stromire, Westman, Lintz, Baugh, (1979-1980); Associate and Partner, Cot- B.A. magna cum laude, Queens McKinley, Antoon and Pearce, P.A., in ten, Shivers, Gwynn, Daniel, Kelley and College (City University of New York) Cocoa (1980-81); Associate, Crofton, Arrington, in Tallahassee (1973-79) (1972); J.D. cum laude, State University Holland, Starling, Harris and Severs, Relevant Professional Activities: of New York at Buffalo (1975) P.A., in Titusville (1978-80) Member, Administrative Law Sec- Year Admitted to the Bar: 1975 Relevant Professional Activities: tion, The Florida Bar Year Employed at DOAH: 1989 Member, Administrative Law Sec- tion, The Florida Bar

 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter

Name: Errol H. Powell Prior Professional Experience: enth Circuit (1988-89); Partner, Steel, Colleges, Degrees, and Years: Partner, Rivas and Rivas, Tallahas- Hector and Davis, LLP (1989-2000) B.A., University of North Carolina at see and Boca Raton; Associate and Part- Relevant Professional Activities: Chapel Hill (1973); J.D., Florida State ner, Milledge Iden and Snyder, (for- Member, Administrative Law and University (1978) merly Milledge and Hermelee), Miami; Government Lawyer Sections, The Year Admitted to the Bar: 1979 Served on DOAH hearing officer panel Florida Bar; Member, The Florida Bar Year Employed at DOAH: 1993 for high-speed rail application; General Code and Rules of Evidence Committee Prior Professional Experience: Counsel and Editorial Board member, (2005-present); Past member, Editorial Staff Director, Florida House of Rep- Palm Beach Newspapers, Inc., in West Board of The Florida Bar Journal and resentative Ethics and Elections Com- Palm Beach; Adjunct professor, Florida The Florida Bar News mittee (1990-93); Special Master, Flor- Atlantic University ida House of Representatives Claims Relevant Professional Activities: Environmental and Health Committee (1989-90); Attorney, Florida Past member, Board of Trustees of Care Department of Professional Regulation the Florida Bar Foundation; Past chair, (1985-89); Attorney, Legal Services of co-chair, speaker, The Florida Bar’s Re- Name: Donald R. Alexander North Florida, Inc. (1980-85) porter’s Workshop; Past Chair, speaker, Colleges, Degrees, and Years: Relevant Professional Activities: The Florida Bar’s Media Law Confer- B.A., The Citadel (1962); J.D., Uni- Member, Administrative Law and ence; Palm Beach County Bar Associa- versity of Florida (1965) Government Lawyer Sections, Standing tion’s Juvenile Advocacy Award (1996); Year Admitted to the Bar: 1965 Committee on Professionalism, Judicial Past member, Board of Directors, Legal Year Employed at DOAH: 1980 Committee of the Commission on Pro- Aid Society of Palm Beach County; Past Prior Professional Experience: fessionalism, The Florida Bar; Fellow, member, Board of Trustees, Poynter In- Attorney/ Hearing Examiner, The Florida Bar Foundation; Member, stitute for Media Studies, in St. Peters- Florida Public Service Commission Standing Committee on Professional- burg; Board of Directors, BNA’s Media (1968-80) ism, Administrative Law and Regula- Law Reporter; Past member, Board of tory Practice Section, National Con- Regents, Leadership Florida Name: J. Lawrence Johnston ference of Administrative Law Judges, Colleges, Degrees, and Years: Judicial Division, American Bar Associ- Name: Larry J. Sartin A.B. magna cum laude, Boston Col- ation; Board Member, National Associa- Colleges, Degrees, and Years: lege (1974); J.D. with honors, Florida tion of Administrative Law Judges; Life B.S., Florida State University (1967); State University (1977) Member and Member, Judicial Council J.D., Florida State University (1972); Year Admitted to the Bar: 1977 and Administrative Law Section, Na- LL.M. in taxation, University of Florida Year Employed at DOAH: 1984 tional Bar Association; Member, Virgil (1977) Prior Professional Experience: Hawkins Florida Chapter, National Year Admitted to the Bar: 1973 Associate and Partner, Ervin, Varn, Bar Association; Member, Historian, Year Employed at DOAH: 1984 Jacobs, Odom and Kitchen, in Tallahas- and Past President, Tallahassee Bar- Prior Professional Experience: see (1977-83) risters Association; Member and Past Assistant General Counsel, Florida Relevant Professional Activities: Treasurer, Tallahassee Bar Association; Department of Revenue (1981-84); As- Author, article in The Florida Bar Member, Tallahassee Women Lawyers sociate, Dean, Mead, Egerton, Blood- Journal (1991); Speaker and author, and Florida Women Lawyers; Member, worth, Capouano and Bozarth, in Or- Fifth Annual Advanced Growth Manage­ Florida Government Bar Association; lando (1979-81); Associate, Carlton, ment Short Course, Florida Chamber Past Board Member, National Confer- Fields, Ward, Emmanuel, Smith and of Commerce (1994); Presenter, Na- ence of Administrative Law Judges; Cutler, in Orlando (1979-80); Associate, tional Association of Administrative Past Chair, Judicial Nominating Proce- Mershon, Sawyer, Johnston, Dunwoody Law Judges (2003); Past member, The dures Committee, The Florida Bar; Past and Cole, in Miami (1977-79); State Florida Bar Second Circuit Grievance Chair, Professional Stress Committee, Traffic Courts Director, Supreme Court Committee; Past member, Second Ju- The Florida Bar; Past Member, Second of Florida (1974-76); Research Assis­ dicial Circuit Professionalism Commit- Judicial Circuit Grievance Committee; tant, Supreme Court of Florida (1973) tee Past Member, Second Circuit Commit- Relevant Professional Activities: tee on Professionalism; Past Board Member, Health Law Section, The Name: William J. Kendrick Member, Tallahassee Bar Association Florida Bar Colleges, Degrees, and Years: B.S., Legal Aid Foundation. University of Tampa (1964); J.D. cum Name: John G. Van Laningham laude, University of Miami (1967) Name: Florence Snyder Rivas Colleges, Degrees, and Years: Year Admitted to the Bar: 1967 Colleges, Degrees, and Years: B.A., University of Florida (1985); Year Employed at DOAH: 1984 B.A. with honors, Faculty Scholar, J.D., with highest honors, Florida State Relevant Professional Activities: Florida Atlantic University (1973); J.D., University (1988) Assistant Attorney General, Florida Emory University (1975) Year Admitted to the Bar: 1988 Department of Legal Affairs (1983- Year Admitted to the Bar: Year Employed at DOAH: 2000 84); Associate, Partner, and of counsel, Georgia (1975); Florida (1976) Prior Professional Experience: Shutts and Bowen, in Miami (1969-81); Year Employed at DOAH: 2000 Judicial Clerk, Hon. Albert J. Hen- United States Army/Army Intelligence derson, U.S. Circuit Court Judge, Elev- Corps (1967-69)

 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006

Meet the Judges J.D. cum laude, University of Miami Appeals (Miami Bureau Chief) (1982); from page 9 (1969) Shareholder, McFarlain, Wiley, Cassedy, Year Admitted to the Bar: 1969 and Jones, P.A. (1983-2000) Year Employed at DOAH: 1980 Relevant Professional Activities: Prior Professional Experience: Appellate Rules Committee, The Name: David M. Maloney Associate, Ress, Gomez, Rosenberg Florida Bar (1984-1994, 1997-2003); Colleges, Degrees, and Years: and Howland, P.A., in North Miami Past member, Executive Council, Ad- B.A., Florida State University (1975-80); Associate, Brickman, Male ministrative Law Section, The Florida (1971); J.D. with honors, Florida State and Bloom, in Miami (1974-75); As- Bar (1997-2006); Professional Ethics University (1975) sistant County Attorney, Metropolitan Committee, The Florida Bar (2003-06); Year Admitted to the Bar: 1975 Dade County (1971-74); Law Clerk to Florida Commission on Ethics (1996- Year Employed at DOAH: 1993 Judge Joe Eaton, United States Dis- 2000), Chair (1998-99); Martindale/ Prior Professional Experience: trict Court for the Southern District Hubbell “AV” rating Director of Regulatory Reform, Gov- of Florida (1969-71); Research Aide, ernor’s Office (1995); Executive Direc- Office of the Florida Attorney General Name: T. Kent Wetherell, II tor, Governor’s Property Rights Study (1968) Colleges, Degrees, and Years: Commission II (1993-94); Special As- Relevant Professional Activities: B.S. magna cum laude, Florida State sistant to the Administrator, Environ- Past Chair and current Execu- University (1992); J.D. with high hon- mental Protection Agency, Washington tive Council member, Administrative ors, Florida State University (1995) (1993); Director of Cabinet Affairs, Ex­ Law Section, The Florida Bar; Steer- Year Admitted to the Bar: Florida ecutive Office of the Governor (1992- ing committee, Florida Administra- (1995); Colorado (1997) 93); General Counsel, Florida Land and tive Practice Manual; Lecturer, The Year Employed at DOAH: 2002 Water Adjudicatory Commission and Florida Bar CLE courses; Author, Prior Professional Experience: Administration Commission (1990-92); articles in The Florida Bar Jour- Deputy Solicitor General, Office of Assistant General Counsel, Governor’s nal and Administrative Law Section the Attorney General (1999-2002); Asso- Office (1990); Assistant Attorney Gen- Newsletter ciate, Hopping Green Sams and Smith, eral, Florida Department of Legal Af- in Tallahassee (1995-99); Law Clerk, fairs (1989); Partner, Maloney, Comfort Name: Charles A. Stampelos Judiciary Committee, Florida House of and Goldberg, in Tallahassee (1985- Colleges, Degrees, and Years: Representatives (1993-94, 1995) 88); Deputy General Counsel, Depart- B.A., University of Florida (1972); Relevant Professional Activities: ment of Business Regulation (1978-85); M.A., University of Miami (1973); J.D., Executive Council, Administrative Research Assistant, Florida Supreme College of William and Mary (1976) Law Section, The Florida Bar (2006-); Court (1976-78) Year Admitted to the Bar: Florida Legislative Chair, Environmental and Relevant Professional Activities: (1977); Virginia (1977); District of Co- Land Use Law Section, The Florida Bar Past member, Appellate Rules Com- lumbia (1978) (1998-99); Member, Student Education mittee, The Florida Bar Year Employed at DOAH: 2000 and Admission to the Bar Committee, Prior Professional Experience: The Florida Bar (1996-99); Member, Name: Linda M. Rigot Department of Legal Affairs, State Tallahassee Bar Association; Member, Colleges, Degrees, and Years: of Florida: Criminal Appeals (1977-80), National Association of Administrative B.A., University of Miami (1966); Cabinet Affairs (1980-82), Criminal Law Judges

Florida ❖ With treatment, chemical dependency Lawyers can be conquered. ❖ Without treatment, it leads to Assistance, Inc. professional and personal disaster. ❖ And possibly death. Toll Free Hotline: ❖ For the help you need with (800) 282-8981 guaranteed confidentiality, Judges’ Hotline: ❖ call Florida Lawyers Assistance. ❖ The only chance you’ll take is a chance at a (800) 972-4040 better life. We can help stop the problem. . . E-Mail: [email protected] ❖ before it stops you.

10 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter

Exemption ing or rehearing en banc in the J.M. The Executive Office of the Gover- from page 1 case. These requests were denied on nor held a public hearing on the APD October 4, 2006. petition for exemption on September In its petition for exemption, APD 25, 2006. Motions to intervene were set forth the grounds for its request filed by two parties and have not yet tal services statutes, Chapter 393, re- for an exception to the requirement been ruled on. As of this writing, the quired the provision of a DOAH hear- that DOAH hear challenges to APD’s Commission has not yet acted on the ing to persons challenging the denial factual determinations concerning petition. Stay tuned. of eligibility for, or the reduction of, the provision of services to its cli- developmental services. The court ents. The petition did not set out Update: On November 15, 2006, APD rejected APD’s assertion that the ex- the specific alternative requested withdrew its petition for exemption. ception in section 120.80(7), created from the Administration Commis- for social and economic programs sion. But the petition concluded by Robin Rosenberg is pro bono counsel administered by the Department of stating that APD “intends to seek an for Holland & Knight’s Florida offices Children and Family Services, should amendment to Chapter 120 during practicing in the firm’s Tampa office. be applied to the developmental ser- the 2007 Legislative session that She received her J.D., with high hon- vices that are provided by APD under would permit the continuation of the ors from the University of Florida. the Medicaid Waiver. The opinion current fair hearing process with the required APD to provide a formal DCF hearing officers and thereby Lawrence E. Sellers, Jr. is a partner hearing pursuant to section 120.57(1) provide the Legislature with the op- with Holland & Knight LLP, practic- to applicants and clients of the agen- portunity to determine whether the ing in the firm’s Tallahassee office. He cy. At the same time that APD filed current system is maintained, or to received his J.D., with honors, from its petition with the Administration fund and alternative to that system.” the University of Florida College of Commission, it also sought rehear- (sic) Law.

Agency Snapshots: Department of Education

The Department of Education is the Hours of Operation: Number of Lawyers on Staff: agency responsible for ensuring the 8:30 a.m. - 5:30 p.m. 12 quality provision of free education from pre-kindergarten through com- General Counsel: Kinds of Cases: munity college. The Department op- Daniel J. Woodring The Department handles a wide erates under the supervision of the Florida Department of Education variety of cases before the Division of Board of Education, which consists of Turlington Building, Room 1244 Administrative Hearings, including seven members appointed by the Gov- 325 West Gaines Street bid protests, rule challenges, disputes ernor to staggered four-year terms. The Tallahassee, Florida 32399 arising from the Division of Vocation- Board of Education in turn appoints (850) 245-0442 al Rehabilitation’s determinations of the Commissioner of Education. (850) 245-9379 (fax) employee qualification for retrain- [email protected] ing, and challenges to the Bureau of Head of Agency: Rehabilitation and Reemployment John Winn, Commissioner Mr. Woodring received his J.D. from Services’ determinations regarding Office of the Commissioner the University of Florida in 1996. reemployment. Turlington Building, Suite 1514 He has served as General Coun- The Department also handles cases 325 West Gaines Street sel for the Department since 2002. against teachers in administrative (850) 245-0505 Prior to being appointed to his cur- hearings before the Educational Prac- (850) 245-9667 (fax) rent position as General Counsel, tices Commission (EPC) for ethical [email protected] Mr. Woodring served as counsel to and other violations that affect their Governor Bush from 1999-2002 and licensure. The EPC serves the func- Agency Clerk: clerked for Judge Robert T. Benton, II tion of agency head in determining Lynn Abbott of the First District Court of Appeal. these license violations and corre- Turlington Building, Room 1514 Mr. Woodring especially enjoys his sponding penalties. These cases com- 325 West Gaines Street work with the Department because prise the majority of the Department’s Tallahassee, Florida 32399 of the quality of the attorneys the caseload, with over 3,000 complaints (850) 245-9661 Department employs and his ability filed against teachers. (850) 245-9667 (fax) to combine aspects of litigation with Attorneys also litigate cases in policy-making. state court including collection of continued... 11 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006

Agency snapshops the Commission on Independent qualifying teachers for cheating on from page 11 Education, which oversees private licensure exams. two-year secondary educational facilities and consults with the Leg- Practice Tips: islature and other state agencies on Practitioners representing teach- liens for rehabilitation services pro- issues involving education law. ers licensed through the Department vided by the Department, and collec- should keep in mind the four levels of tion of defaulted loans from student APA Interaction: review a complaint must go though borrowers. In federal court, the De- While most of the cases the general before a case is actually filed. The partment is currently defending a counsel’s office handles are not APA- Commissioner of Education must constitutional challenge to its govern- related, the majority of their inter- himself make a probable cause deter- ing statutes. action with the APA comes through mination before a case is permitted to In addition to their role as litiga- bid protests and rule challenges. The proceed. This level of scrutiny means tors for the Department, attorneys Department also handles some mis- that a case is rarely brought that the also serve as general counsel to cellaneous APA cases, such as dis- Department cannot support.

Commission On Ethics

The Florida Commission on Ethics Hours of Operation: Public Officers and Employees (Part is a 9-member body created by the 8:00 a.m. - 5:00 p.m., Monday - III, Chapter 112, Fla. Stat.), as well Legislature as required by the Flor- Friday as Rule Chapter 34 for a handy desk ida Constitution. Five members are reference. The Commission’s website appointed by the Governor, subject to General Council: www.ethics.state.fl.us contains much Senate confirmation. Two members Philip C. Claypool valuable information and provides a are appointed by the Senate Presi- user-friendly research capability for dent and two by the Speaker of the Philip C. Claypool has been the ethics opinions and cases. House. Neither the President nor the Commission’s General Counsel and Cases involving violations of the Speaker may appoint more than one Deputy Executive Director since Code of Ethics are handled pur- person from the same political party 1987. Phil was a philosophy major suant to Chapter 120, as are the and the Governor may not appoint at Purdue and received his J.D. from smattering of other administrative more than three members from the Florida State University. Most any- matters committed to the agency. same party. No more than five mem- one who has been in government any (See, e.g., PSC (ss. 350.031-350.043); bers of the Commission may be from length of time has partaken of the state agencies’ use of motor vehicles the same political party at any one invaluable services Phil and his staff and aircraft (ss. 287.17-187.175, Fla. time. The Commission is a part of of four lawyers provide in guiding us Stat); and agencies’ use of public the legislative branch. The Commis- and our clients through the often- funds to lobby the legislative or ex- sion appoints an executive director confusing maze of ethics laws. Phil ecutive branches (s. 11.062(2), Fla. to supervise the daily administrative can be reached at P. O. Drawer 15709, Stat.)). The Commission is, of course, responsibilities. Tallahassee, FL 32317-7709, 850-488- involved in the court system when it 7864, [email protected]. comes to challenges to the constitu- Executive Director: The role of the Commission on tionality of ethics laws and appeals Bonnie J. Williams Ethics is to render opinions and of final orders. 3600 Maclay Blvd. S., Suite 201 give advice on how to comply with Phil says the best part of serving as Tallahassee, FL 32312 the ethics laws, educate public of- General Counsel for the Commission Phone: (850)488-7864 ficers, employees, and others about is to have the trust of the Commis- Fax: (850)488-3077 the requirements of the ethics laws; sion members—9 citizens with var- to render opinions and give advice ied backgrounds from all around the Agency Clerk: on how to comply with ethics laws; state who have volunteered to make Kaye Starling and to promulgate, receive, and the hard decisions. His best tip is to 3600 Maclay Blvd. S., Suite 201 maintain financial disclosure re- contact the Commission “early and Tallahassee, FL 32312 ports. often.” Commission attorneys have This legislative agency is made over 780 years of combined experi- Executive Branch Lobbyist subject to Chapter 120 and its rules ence with the ethics laws and, Phil Registration Office: are found in Chapter 34 of the Flor- adds, “we would much rather advise The Pepper Building, Room G-68 ida Administrative Code. The Ethics public officers and employees how to 111 West Madison Street Commission’s rules apply to virtually comply with the law than investigate Tallahassee, FL all of us in government and it’s a good them … although that can be fun, Phone: (850)922-4990 idea to download the Code of Ethics for too!”

12 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter Minutes — Administrative Law Section Executive Council Meeting June 23, 2006 Boca Raton, Florida Approved by Executive Council

I. CALL TO ORDER: Executive III. COMMITTEE/LIAISON E. Membership Council Chair Debby Kearney called REPORTS Charlie Stampelos reported that the meeting to order at 10:30 a.m. the Section membership increased A. Continuing Legal Education slightly from 1182 members to 1197 Present: Debby Kearney, Booter Im- Andy Bertron reported that the members. hof, Seann Frazier, Andy Bertron, Section made a profit of $74 on the Charlie Stampelos, Mary Ellen Clark, Public Utilities Law CLE in January F. Webpage Linda Rigot, Clark Jennings, Larry 2006. The Administrative Appeals Cathy Lannon reported that many Sellers, Cathy Sellers, Cathy Lan- CLE lost $1,239 which was absorbed updates have been added to the web- non, Kent Wetherell, Elizabeth McAr- by the Appellate Law Section. The page thanks to the work of Daniel thur, Chris Moore, Allen Grossman, Pat Dore Administrative Law Confer- Nordby. Section newsletters will now Li Nelson, Bill Williams, Bruce Lamb, ence will be held on October 19 and be posted to the website after publica- Scott Boyd, Josie Tomayo, Barbara 20, 2006, in Tallahassee, with Seann tion. Staros, Adrian Rodgers, and Jackie Frazier and Andy Bertron serving Werndli. as co-chairs. The Young Lawyers Di- G. Uniform Rules of Procedure vision (“YLD”) will conduct a basic Debby Kearney reported that the Absent: Cynthia Miller, Rick Ellis, administrative law CLE on December analysis of revisions to the Uniform Donna Blanton, and Dave Watkins. 6, 2006, in Tallahassee, with video re- Rules of Procedure has been assigned plays around the state to follow. The to a new attorney in the Governor’s II. PRELIMINARY MATTERS Administrative Law Section will work Office, and will be a summer proj- with the YLD to provide assistance. ect. Linda Rigot reported that the A. Minutes – January 5, 2006 Uniform Rules Subcommittee met to The minutes of the January 5, 2006, B. Publications discuss comments received from the Executive Council meeting were ap- Elizabeth McArthur (after ten Department of Revenue and after proved with one change: Section II.A years of hard and dedicated work) consideration, decided not to submit was changed to read: “The minutes announced that she would like to any further amendments or com- of the October 14, 2005, Executive transition the newsletter to a new ments to the Governor’s Office. Council Meeting were approved with editor within one year. Mary Ellen one abstention.” Clark reported that sixteen agen- H. Long Range Planning cy snapshots have been completed. Booter Imhof reported that the B. Minutes – January 6, 2006 Debby Kearney and Booter Imhof Board of Governors approved the The minutes of the January 6, volunteer to collaborate on agency changes to the Section’s by-laws that 2006, Executive Council retreat were snapshots covering various depart- were first discussed and drafted at approved. ments within the Legislature that the last long range planning retreat. would be of interest to administrative C. Minutes – February 24, 2006 practitioners. I. Board of Governors Liaison The minutes of the February 24, Larry Sellers reported that the 2006, Executive Council meeting C. Legislative Board of Governors approved the were approved. Bill Williams reported extensively Bar’s budget with no change in dues. on the provisions of Senate Bill 262 Larry also reported that the Board is D. Treasurer’s Report that was passed in the 2006 Session considering amending the new inven- The Treasurer’s Report was of the Florida Legislature and signed tory rule to create a possible exemp- presented by Chris Moore and ap- by the Governor on July 1. Debby Ke- tion for government lawyers. proved. arney reported that she has seen bills that include language purporting to J. Law School Liaison E. Chair’s Report amend administrative rules. Cathy Sellers reported that she has Debby Kearney provided a brief narrowed the dates for the Section’s Chair’s report and deferred the rest D. Public Utilities Law panel discussion and reception at the of her report to closing comments. No report was presented. FSU College of Law to four dates in

continued...

13 Administrative Law Section Newsletter Volume XXVIII, No. 2 • December 2006

Minutes – June 23, 2006 were discussed during Committee Jackie Werndli reported that the from page 13 Reports. (See III.G above.) Section must readopt legislative posi- tions every two years. Cathy Lannon B. Administrative Subcommittee, Ap- expressed concern that some of the late September and early October. pellate Court Rules Committee Section’s legislative positions were She anticipates a four-person panel The Subcommittee recommended blanket positions that were too broad, with representatives from DOAH, that the Executive Council not take such as opposing all exemptions from state agencies, and private practice. a position on potential amendments the APA. After discussion, Bill Wil- Cathy also reported that she has ten to Rule 9.310(b)(2) of the Rules of Ap- liams moved to readopt the Section’s law school students in her admin- pellate Procedure. After discussion, it legislative positions without change. istrative law class that are seeking was agreed to make Charlie Stampe- Linda Rigot seconded and the motion mentors. Anyone interested in men- los, Cathy Lannon and Bill Williams passed with Cathy Lannon voting in toring a student should contact Cathy available to the Appellate Court Rules opposition and Scott Boyd abstain- at [email protected]. Committee for consultation. ing. K. CLE Committee Liaison V. NEW BUSINESS VI. INFORMATIONAL Andy Bertron reported that the Florida Bar CLE Committee voted A. Officer/Executive Council Elec- No report. to endorse a proposal by the Equal tions Opportunities Law Section to amend The Nominating Committee nomi- VII. FINAL REMARKS AND PRE- Rule 6-10.3(b) of the Rules Regulat- nated the following candidates for SENTATION OF AWARDS – Out- ing the Florida Bar by adding bias Executive Council officers in 2006- going Chair elimination to the five-hour require- 2007: Chair-elect – Andy Bertron; ment for ethics and professionalism. Secretary – Elizabeth McArthur; Debby Kearney thanked the Coun- Treasurer – Seann Frazier. The cil members for their hard work and L. Council of Sections Nominating Committee nominated recapped the year’s activities. Clark Jennings reported that the the following candidates to terms Council of Sections will conduct a on the Executive Council beginning VIII. PROGRAM OUTLINE & leadership seminar in July at the in June 2006 and expiring in June CLOSING COMMENTS – Incom- Florida Bar and Florida Supreme 2008: Scott Boyd, Clark Jennings, ing Chair Court for new Section officers. Bruce Lamb, Cathy Lannon, Wel- lington Meffert, Cathy Sellers and Booter Imhoff reported that he M. Section Liaison Kent Wetherell. Li Nelson moved has been working with current Coun- 1. Environmental and Land Use both slates of nominees and after cil members on new committee as- Law – No report. second by Booter Imhoff, all nomina- signments and will be contacting 2. Health Law – No report. tions were approved by unanimous new Council members in the coming vote. weeks about their committee prefer- IV. OLD BUSINESS ences. A. Uniform Rules of Procedure B. Sunsetting of Legislative Positions Debby Kearney moved that the The Uniform Rules of Procedure – 2004-2006 Biennium Council adjourn at 12:20 p.m.

Minutes — Administrative Law Section Executive Council Meeting September 8, 2006 Tallahassee, Florida Not yet reviewed or approved by Executive Council

I. CALL TO ORDER: Executive Meffert, Bruce Lamb, Linda Rigot, II. PRELIMINARY MATTERS Council Chair Booter Imhof called the Bill Williams, Donna Blanton, Cyn- meeting to order at 2:05 pm. thia Miller, Mary Ellen Clark, Cathy A. Minutes — June 23, 2006 Lannon, Dave Watkins, Scott Boyd, The minutes of the June 23, 2006, Larry Sellers, Amy Schrader, and Executive Council meeting were ap- Present: Booter Imhof, Clark Jen- proved. nings, Debby Kearney, Andy Bertron, Jackie Werndli. Li Nelson, Elizabeth McArthur, Kent Absent: Seann Frazier and Allen B. Treasurer’s Report Wetherell, Cathy Sellers, Wellington Grossman. Jackie Werndli presented the

14 Volume XXVIII, No. 2 • December 2006 Administrative Law Section Newsletter treasurer’s report and reviewed the C. Legislative changes. Ms. McKinney Bartelle budget statements with the council, Bill Williams reported no legisla- said that she had not reviewed the noting that reports should be avail- tive activity. Linda Rigot reported council’s work product, but would able soon to show on a monthly basis that the Senate Committee on Gov- consider it as a comment received the expense allocations under the ernmental Oversight was conducting for rule development. She said that new expense sharing process. a study on all APA exemptions in council members could attend the sections 120.80 and .81 (not on those workshop and could provide a draft C. Chair’s Report in other statutes). The Committee is of a declaratory statement rule, and Deferred to new business. contacting agencies with exemptions, that too would be considered as a requesting explanations on why there comment received. The rule develop- III. COMMITTEE/LIAISON is an exemption and if the exemption ment workshop is September 21 at REPORTS is still needed or not. Cathy Lannon The Capitol, 10am, Conf Room 2103, noted that she received inquiries on 21st floor. A. Continuing Legal Education some exemptions that are not in the Donna Blanton moved that the Andy Bertron provided an update APA. council agree to having Linda Rigot on planning for the upcoming Pat go to the workshop to give a history Dore Conference, noting that the fi- D. Public Utilities Law of the uniform rule development and nal brochure has been circulated, Cindy Miller reported on an up- the council’s involvement, and to dis- and urging council members to send coming CLE offered by the Federal cuss the process and time put into brochures to anyone who might have Communications Bar Association, developing the council’s proposal and an interest in attending. Andy also on November 16 at the Mary Brogan explanations. Elizabeth McArthur reported on the upcoming Young Museum, covering telephone and en- seconded the motion, and the motion Lawyers’ Division Basic Administra- ergy issues. passed. tive Law CLE that will be held in December. Seann Frazier, Li Nelson, E. Membership H. Long Range Planning and Cathy Sellers put this program Kent Wetherell reported that Andy Bertron reported that some together, and it will be presented live section membership appears down concern had been expressed about in Tallahassee with videotaped show- slightly, but Jackie Werndli explained the proposed date of January 5 for ing elsewhere in the state. that there is a timing issue with the the long range planning retreat be- Booter Imhof asked for help iden- reports, with some overlaps, and the cause it was so close to the holidays. tifying section members who can be membership count would catch up There was general agreement to try available at out of town seminar sites as of the Pat Dore Conference. Kent to identify alternative dates. Melhana to help with the section membership Wetherell noted that a new service Plantation is the likely site; they drive. that the section will be able to offer just completed a renovation and are new members will be the Listserv idea being competitive in an attempt to B. Publications to be discussed under new business. get business. Andy Bertron solicited Debby Kearney reported that suggestions for the agenda. she has an article for The Florida F. Webpage Bar Journal, and has completed two Kent Wetherell agreed to substi- I. Board of Governors Liaison agency snapshots for the Section’s tute for Elizabeth McArthur as a Larry Sellers provided substan- Newsletter. member of the Webpage committee. tial material and information for Elizabeth McArthur reported on The committee will be looking into the council, including the prospect upcoming features for the Newsletter, whether to enter into a new contract of repealing the new requirement for including a two-part series on Ad- to replace the Black Group given designation of an inventory lawyer ministrative Law Judge biographical William Black’s decision to close busi- as to government lawyers; recon- summaries compiled by DOAH Chief ness. sideration of an old ethics opinion Judge Bob Cohen and Administrative regarding representing members of Law Judge Linda Rigot. G. Uniform Rules of Procedure a local government commission by Mary Ellen Clark provided an up- Linda Rigot reported that a notice an attorney who has represented date of agency snapshots, completed of rule development on the uniform the commission, with the conclusion and in the works. Cathy Sellers vol- rules of procedure was published in that that there may be cases where unteered to prepare a snapshot for the September 1, 2006 issue of the it is allowable to represent individual the Agency for Persons with Disabili- Florida Administrative Weekly. Linda members; issuance of a report by the ties. As part of the agency snapshot Rigot contacted one of the identified Cox Commission regarding updating feature, it was suggested that the contact persons and was told that the Bar’s disciplinary system; the council keep a directory or roster the person who would be in charge Judiciary Committee’s consideration of general counsels, which could be of this rule development was June of new ways to evaluate judges; and published in the Newsletter and kept McKinney Bartelle in the Attorney consideration of a recommendation to on the section website. Cathy Lannon General’s office. Linda Rigot called expand the areas for the 5-hour CLE suggested a feature for the Newslet- Ms. McKinney Bartelle and offered requirement to cover ethics, profes- ter like The Florida Bar Newsletter’s the council’s report that summarized sionalism, and bias elimination in the “on the move” for general counsels. the rationale for considering certain legal system.

15 Minutes – Sept. 8, 2006 2. Health Law – No report. were materials in the agenda packet from page 15 3. YLD Liaison – No report. for members to review. Daniel Nordby has the ability to set up a Listserv J. Law School Liaison N. DOAH Update email notification system now. The Cathy Sellers reported that the New Administrative Law Judge Environmental and Land Use Law panel discussion event at FSU will Li Nelson reported that she is thor- Section set up Listserv 4 years ago, be held on October 4, from 4:30 to oughly enjoying her new position. and their experience could point the 7 pm. The panel discussion will be way to some problems and solutions, held until 6 pm, following by a recep- O. Appellate Court Rules ad hoc such as use of a gatekeeper to control tion. The event is open to students, Committee what gets posted to the Listserv group. lawyers, professors. Panel members Bill Williams reported that there Some potential uses of Listserv includ- will be DOAH Chief Judge Bob Co- was a subcommittee meeting on Aug. ing posting the newsletter right away, hen, and executive council members 17 of the appellate rules committee and circulating ads for CLE courses. Mary Ellen Clark, Andy Bertron, and to address Fla.R.App.P. 9.310 (b)(2), Overall, Jackie Werndli thinks this is Scott Boyd. Cathy Sellers has spoken automatic stays for public bodies and a good idea if we consider some of the with APA-related professors, who whether there is a conflict with Sec- problems and address them. will strongly encourage students to tion 120.68. The subcommittee voted attend. The SBA is also publishing to add a clause to do away with auto- Certification notice. Jackie Werndli will try to add matic stays for public bodies appeal- Linda Rigot expressed a concern notice of this event in The Florida ing order arising under APA. This will about the process used to identify Bar News, in the September issue of go to full appellate rules committee recommended persons to serve on the the section newsletter which is in the for vote, and Bill Williams has been certification committee. Booter Imhof final stages of preparation, and on the asked to come to the committee meet- noted this concern, and stated that Bar’s website. ing to answer APA-related questions. a letter making recommendations It was noted that the council had reflected his individual position. K. CLE Committee Liaison voted previously not to take a posi- Larry Sellers gave an overview of Cathy Lannon reported that there tion on this issue, and it was agreed the process, noting that the package of is an upcoming meeting and retreat that Bill Williams’ appearance before applications for certification commit- in Ponte Vedra, and she will attend. the appellate rules committee at its tee membership had been sent to Pres- request would not be on behalf of the ident Cox, and he will be reviewing it. L. Council of Sections council. It is not uncommon for the President Mary Ellen Clark reported that to ask for input by the relevant section there will be a meeting on Saturday, IV. OLD BUSINESS chairs, and he thought the President and she will attend. Clark Jennings None. understood that the input provided reported that he attended the last was individual input by the chairs. meeting, which was abbreviated with V. NEW BUSINESS On motion, duly seconded, the no news to report. Listserv meeting was adjourned at 4 pm. Jackie Werndli reported about the M. Section Liaison new Listserv mechanism, noting that Respectfully submitted, 1. Environmental and Land Use she was sorry Daniel Nordby was not Elizabeth McArthur Law – No report. here to talk about it, but that there Secretary

PRSRT-STD The Florida Bar U.S. POSTAGE 651 E. Jefferson St. PAID Tallahassee, FL 32399-2300 TALLAHASSEE, FL Permit No. 43