Florida Admin Law

Front 1

How a Bill is passed

Back 1

1. House and senate must both pass (creates engrossed bill)
2. Goveror gets the bill (enrolled bill)
3.. Governor signs/ becomes law
4. Law is codified into statutes

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After bill becomes law . . .

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agencies have 180 days to write rules of general applicability to implement and interpret the law. Once approved, these are presumed valid and have the force and effect of law.

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3 Purposes of the FL Admin Procedure Act

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1. Process by which disputed facts can be evaluated
2. Requires agencies to adopt rules through set procedures
3. Agencies must pass rules, can't only use policies

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Rule Defined

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agency statement of general applicability that implements/interprets/prescirbes law

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Agency Defined

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all levels of government except single counties/municipalities

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Territorial Approach to Agencies

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an authority is an agency because it has been given powers to operate outside the limits of one county

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Two ways to challenge a rule

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1. Invalid delegation of legislative authority
2. Invalid exercise of delegated legislative authority

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Invalid exercise of delegated legislative authority:

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-action that goes beyond the powers, functions, and duties delegated by the legislature

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A proposed or existing rule is an invalid exercise of delegated legislative authority if: (8 ways)

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1. The agency has failed to materially follow the applicable rulemaking procedures or requirements
2. the agency has exceeded its grant of rulemaking authority
3. the rule enlarges, modifies, or contravenes the specific provisions fo the law implemented
4. the rule is vague,
5. fails to establish adequate standards for agency decisions, or
6. vests unbridled discretion in the agency
7. the rule is arbitrary or capricious
8. Rule imposes regulatory costs which could be reduced by adoption of less costly alternatives that substantially accomplish the statutory objectives

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Administrative Due Process

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1. Notice
2. Hearing
3. Judicial Review

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Rules must be ______ ________ to the statute.

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reasonably related

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____ _________ and _______ must be put forth in the statute

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specific powers and duties

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Rulemaking Presumption

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there is a presumption that rulemaking is permitted. Only time an agency can't make a rule is if it doesn't have enough experience or a practical basis to do so

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How to make a rule (5 steps)

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1. Agency recieves the law from the governor
2. Rulemaking Workshops
- announced in FAW
- states what the law is and what they want to do
-economic impact statement
-anyone can request workshop within 14 days
3. Proposed Rule published in FAW
- must have a clear point of entry
- if no challenges, then the rule is sent to secretary of state and put in the administrative code
4. Proposed rule is sent to Joint Administrative Proccedures Committee (JAPC)
-JAPC checks to ensure the agency hasn't gone to far and that the rule is readable to the average citizen
-agency not required to follow changes by JAPC, but the committee's recomendation is sent to Sec of State so they usually work together
5. Final rule sent to Sec. of State.
-waits 20 days and publishes

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Challenging a Proposed Rule (6 Steps)

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1. Workshops/Rule Development
2. Proposed Rule in FAW
-existing rules presumed valid- must show invalid exercise of delegated legislative authroity by a preponderance fo the evidence
3. Petition to DOAH
-21 days to file petition of the proposed rules
- pursuant to FL Admin Code you state: who you are, what rule, why your challenging, what's your interest, and factual/legal arguments
-sent to DOAH who processes the pettiion, sends copy to agency, and sets up pre-hearing conference and hearing
4. hearing
-within 30 days
-can generally get one continuance
-interveners may join in
5. Final Order recommended by ALJ
6. Agency/Petitioner can appeal to DCA

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Challenge an Existing Rule

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- rule is presumed valid
- must challenge through the court
-if no factual issues, per se challenge of constitutionality in Circuit Court
- If Factual issues, DOAH has a hearing on the factual issues, then is sent to circuit court for constitutionality

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Standing to challenge a rule

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Must be SUBSTANTIALLY AFFECTED by the proposed rule/existing rule/policy
- have to have an (1) immediate injury (2) within the zone of interest

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Hearings (what happens? Whats burden? What's decision?

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-Judge hears testimony:(a) why invalid exercise? (vague, arbirtrary, goes beyond, unnecessary costs, etc.) (b) have all the procedures been followed?
Burden = preponderance of the evidence
Administartive Law Judge issues Final Order with findings of fact, conclusions of law and final decision

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Appeals to Final Orders (who can appeal, time limit, question)

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- can be appealed by either party
- 30 days to appeal
- Question: whether the final order was substantiated by competent substantial evidence and comports with legal basis/procedures

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Policies (6 points)

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- when the agency doesn't have enough info to make a rule
- given number and put in policy books
- must be based on statute
- still govenred by IEDLA
- agencies usually use policy then gather more info and propose/create rule
- if invalid policy then entitled to AT fees

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Agency Defenses to Policy Challenge (3)

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(1) didn't have sufficient time to acquire knowledge to make a rule
(2) agency related matters not sufficiently resolved
(3) agency is currently in the rule making process

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Test to determine whether Non-rule polices were being treated as rules:

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(1)Has General Applicability
(2) imposes immediate requirements not otherwise stated by the statute or existing rules

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Emergency Rules

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- used to protect health, safety, and welfare
-can challenge whether it was an emergency
- published in FAW stating effective now
- Stays in effect 90 days
- stilll have the right to hearing, but the rule stays in effect

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Waivers and Variances (defined and 3 steps)

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Variance - subject to rule but parameters changed to accomodate
Waivers- not subject to rule

1. File petition with agency askign for variance/waiver showing (a) purpose of udnerlying statute not harmed by variance/waiver (b) hardship
2. Agency published in FAW
3. May be appealed to DCA (variances are permanent)

1. Make a petition to the agency showing 2 things: (a)
2. Agency has 30 days to grant/deny

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Statement of Estimated Regulatory Costs (SERC) (4 points)

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- must be included in rulemaking process, costs associated
- if challenge a rule based on cost you must prove the SERC is defective which implies there is a less costly way to do it
- must consider (a) costs to entities such as application fees, license fees (b) costs to agency and other agencies (c) cost to small business, small cities, small counties (business < 100 EE, counties < 75k, small city < 10k)
- can only challenge SERC within one year after rule is published

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Petition to Initiate Rulemaking

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- when a rule doesn't exist that you think is needed
- often, propose what the rule should be
- petition to the agency

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Petition to Initiate Rule Making: No Policy in Place

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Either
(1) accept/propose that rule throguh the normal process of rulemaking procedures, or
(2) agency can decide not to make that rule (no appeal)

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Petition to Initiate Rule Making: Policy in Place

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(1) initiate the usual rulemaking process, or
(2) have a workshop and deny making the rule ** (but must send to JAPC)

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Primary Jurisidcition v. Exhaustion of Administrative Remedies

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Primary jurisdiction - circuit court has this meaning the issue is properly decided in the circuit court. If the circuit court finds issues of fact then DOAH will hold a hearing and send its findings to Circuit Court for decisioin on constitutionality

Exhaustion of Admin Remedies (99% time)- admin action can't go straight to circuit and must go through admin process then appealed. Dept. will file a MTD and you lose the opportunity to be heard

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An agency may only adopt rules that . . .

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implement and interpret the specific powers and duties granted by the statute.

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Quasi Judicial Proceedings (8 step process)

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1. Agency issues admin complain -- legal document which says this is what we believe you've done, here's whate we will do
2. If yo udisagree with punitive action listed in complaint - 21 days to petition agency and request admin hearing (NOT DOAH). If agency believes your petition is defective, they can send it back once for amendign
3. Agency reviews petition - 15 days to review
4. agency sends to DOAH- DOAH has 5 days to appoint ALJ
5. DOAH holds hearing - normally within 30 days
6. Hearing officer issues recommended order -- hearing officer has 30 days to render order (NON Final)
7. Recommended order goes back to agency -- agency head must determine whether findings of fact and law were supported by competent substantial evidence. Agency head bound by evidence hearing.
8. Agency issues final order -- 30 days to appeal to DCA

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Trials in Admin Law (9 Step Process)

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1. government makes decision which affects teh substantial interests of a person/business/org (similarly to substantially effects)
2. decision is sent to substantially interested entity which includes a clear point of entry
3. Entity can submit a petition to the agency
4. If the agency does not agree with petition, it has 15 days to forward to DOAH
5. DOAH appoints ALJ
6. Hearing held within 30 days fo receiving petition
7. ALJ issues recommende dorder
8. Recommended order sent to Agency who reviews, agrees/disagrees, and prepares Final Order
9. Final Order can be appealed within 30 days of filing (DCA can affirm, modify, reverse, remand, etc.)

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ALJ Hearings (2 types)

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1. Formal - most common. when disputed facts exist
2. Informal - if you tell the agency there are no issues of fact, the agency can have the hearing themselves w/out involving DOAH

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Free Form Proceedings (5 things)

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1) get a complaint
2) agency investigates
3) Administrative Search Warrants- need statutory authority and probable cause. Some highly regulated busiensses do not require search warrants (weapons sales, alcohol sales, race tracks, etc.)
4. Administrative Subpoenas- investigation w/in the scope of the agency's jurisidcition. The material or testimony must be relevant and material disclosure must not be privileged.
5. If you ar applying for something (nurse, lawyer, etc.) no 5th amendment right against self-incrimaintoin. However, if they are trying to take penal action against you (revoke license) you do no thave to dislcose due to a 5th amendment right.

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Probable Cause Panel

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- 30 days to determine if there is probable cause to administer a complaint
- until 10 days after probable cause panel gives okay to file a complaint

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Public Records Act

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once a probable cause panel decides, after 10 days the complaint is issued and the information is relaesed to the public

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Evidence at Administrative Proceedings (4 points) (rules, burdens, hearsay, past actions)

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1. FL rules of civ prog and evidence apply unless otherwise specified
2. Burdens of Proof- Disciplinary/Penal cases (clear and convincing evid.) All other cases (preponerance fo the evidence)
3. hearsay- generally admissible to explain or supplement facts. Not admissible to prove alternative issues unless falls within hearsay exception
4. past actions/conduct is admissible to establish pattern, motive, or intent but not show bad character

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Representation

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- usually attorney
- possible for non-attorney but DOAH HO must make the determination that hte person has knowledge fo the law and evedientiary rules

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Contempt

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- ALJ does not have power to hold in contempt
- can't send someone to jail
- this power limited to judiciary

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Review by Agency Head and DCA (2 questions)

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1. Are the facts supported by competent substantial evidence?
2. Does the recommended order comport the essential requirements of law? (Procedure + Legal)

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Declaratory Statements (Defined and 4 step Process)

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Defined- means of resolving issue/question before taking action. (before you act get a decison on whether it is okay)
1. File petition with agency specifically stating the problem nad rule (most likely hold an informal hearing since no disputed facts)
2. Give summary in FAW of petition and decision
3. within 21 days someone can petition for hearing on declaratory statement if hardship results
4. Maximum of 90 days to respond to pettiion for declaratory statement

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Summary Hearings (Scenarios and 9 Step Process)

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For scenarios where (a) both parties want proceedings to move fast and (b) there are issues of disputed facts.
1. Agency takes action against someone
2. Petitioner requests summary hearing- agency has 15 days to consider petition
3. Agency sends to DOAH
4. DOAH responds to petitioners and offers hearing or summary hearing - petitioner has 5 days to respond if htey want summary hearing. If DOAH doesn't hear back, they assume regular hearing
5. All parties MUST agree to Summary Hearing - 30 days to conduct summary hearing (expedited timline)
6. DOAH HO can find that issue is too technical/complicated for summary hearing and direct a normal hearing- intervening must occur 20 days before hearing commences
7. DOAH HO issues Final Order- HO has 30 days to issue
8. Limited discovery, only one motion allowed for short continuance
9. Appeals to DCA and treated as any other Final Order

Front 43

Adminstrative Search Warrants and Subpoenas

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- agencies have authority to issue both. Admin istrative subpoenas are valid.
Search Warrants:
- Need statutory authority and probable cause to issue
- 4th amendement freedom from unreasonable search and seizure may not apply because it is a civil procedure
- must determine legitimate expectation of privacy.
- 5th amendment right to be protected form self-incrimination would only apply to penal cases

Subpoenas
- investigation must we w/in scope of agency's jurisdiction
- material or testimony must be relevant and material
- disclosure must not be privileged

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Statement of Regulatory Costs (SERC) (4 points)

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1. must be included in rulemaking process, costs associated
2. if you challenge on cost grounds, you must prove statement of regulatory costs is defective (there is a less costly way to do it)
3. Must consider (a) costs to entities such as application fees, license fees (b) costs to agency and other agencies (c) costs to small busiensses, small cities, small counties (business < 100 EE, counties< 75k, small city <10k)
4. Can only challenge SERC w/in 1 year afer rule is published in FAW

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4 Requirements to Appeal to DCA

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1. Final Order
2. Agency subject to APA
3. Must be a party with intervenoors (not at appellate level)
4. Must be adversely affected by order

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Judicial Review: Writ of Mandamus

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When you have met all the requirements but agency not issuing your license, you can appeal for a writ of mandamus.
- discretionary writ to compel agency to perform function
- command issued in name of sovereign authoirty from a superior court having jurisdiction, and is directed to some person, corporation, or inferior court, w/in jurisdiction of superior court, requiring them to do some particular thing therein specified
- writ directs agency to perform functions, does not perform administerial functions
-

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Judicial Review: Prohibition

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- come court or agency is taking jurisdiction over. Prohibits circuit court case from presiding over the case, Writ of Prohibition will turn it back over to DOAH

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Judicial Review: Certiori

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Non final order. If you have discovery problems, you can petition for writ to ask the appellate court to issue discovery order.

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Applications for Licenses/Permits (6 Step Process)

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1. Send in application to agency - agency has 30 days to review app for completion
2. 90 days to issue decision. If nothing done for 90 days and there is no exam requirement, get default license. If exam required, provisional license granted until take exam .
If application disapproved
3. Agency sends letter by registered mail with basis for disapproval (21 days to challenge with letter giving clear point of entry)
4. DOAH hearing allowed - HO issues recommended order to agency w/ 3 elements
5. Agency head will make final order based on competent substantial evidence, findings of fact, and conclusions of law (burden = preponderance on applicant to show why he's entitled....no 5th amendment right)
6. All relevant evidence admissible. Hearsay allowed for support, no primary.

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Professional Complaints (6 step process)

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1. Someone makes complaint about doctor to the Dept. of Health
2. Agency conducts free form investigation- no timeline required, but usually w/in 30 days
3. Must contact doctor w/in 21 days
4. Probable Cause Panels- Subject Matter Experts have 30 days to consider case for probable cause to go forward. If no cause, letter sent to complanant.
5. If probable cause, investigation kept private- for 10 days after findings of panel released, then refered to FL public records
6. Agency issues Admin Complaint (a) served by civil process, published if person cannot be found. Includes clear point of entry. 21 days to petition agneyc if disputed facts or penalty. Agnecy has 15 days to respond then initiate DOAH hearing, who will send it back to Board for Final Order

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Attorneys Fees Quasi-Judicial (complaints, Permits, etc.)

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At fees and costs only awarded if a party participates for an improper purose (either agency or intervening party). Unlikely to get fees for the most part. Limited to $15k

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Attorneys Fees Quasi Legislative (Proposed rule and Existing Rule)

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Attorney Fees and costsAwarded to prevailing party unless agency can demonstrate substantial jsutification for proposed rule. Limtied to $15k

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Attorney Fees: Policy not made into rule

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Fees Csots will be awarded unless agency demonstrates substantial jsutiification for existing rule. Limited $15k

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Equal Access to Justice Act (5 points)

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(a) small business (under 25 EE and under $2MM net worth of buesinsess---burden on busienss to prove)
(b) Applies only to admin adjudications
(c) Prevailing small business will be awarded At fees unless agency can demonstrate substantial justification for agency action
(d) Petition filed with DOAH w/in 60 days after small busienss is deemed prevailing party
(e) Can recover up to $50k

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Draw Outs

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- "draws out" a fact finidng hearing
-If you need additional witnesses/evidence when challenging proposed rule/policy yo ucan request a Draw Out hearing to find facts to bring back to rulemaking hearing
- stops rulemaking
can't force agency, but can challenge arbirtary/capricious denial for draw out

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Environmental Protection Agency (EPA)

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- responsible for standards of air, water, surface water, etc.
- states responsibility to enforce federal minimums
- state doesn't have to make rule to adopt fed min
- Florida Dept. of Environmental Protection is the lead agency which deals with water, air, waste etx.

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Environmental Permits (6 points)

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1. If you need to do something to the land that affects the environment
2. you send your application to FDEP, 30 days for review, possilby send back for modification
3. Once application is complete ,FDEP has 90 days to approve/deny
4. FED govt. doesn't allow FL to grant permits by default
5. FDEP will issue notice of intent to either grant/deny permit
6. If denied, applicant can ask for hearing. Burden on applicant to show why they should get permit. FDEP sends to DOAH for hearing, recommended order goes back to FDEP, who makes final order. (Just like license application)

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Environmental Standing

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standing provided to any entity to intervene in the proceeding (basically automatice intervention)
- if you file initial petition, you have to have standing + zone of interest

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Environmental Violations (5)

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1. Warning Letter - asks party to reverse what was done, or not do something planned. If this doesn't work, meet with parties and get
2. Consent Order- They then receive a
3. Notice of Violation - which says what they have done and how they are supposed to remedy it. This starts admin process -- clear point of entry by notice of violation.
4. If party disagrees, party can petition for admin hearing
5. Goes to FDEP, who has 15 days to look at it, then sends to DOAH. Findings of fact, conclusions o flaw, and recommended disposition. HO makes recommendation to agency who issues final order

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Developments of Regional Impact (Defined, 7 characteristics, what to do if you want to build one)

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- anything located in one county that draws people and traffic is a DRI.
Characteristics of DRI:
- extent the development will create environmental problems
- amount of vehicular or pedestrian activity generated
- # of persons will be residents/EE
- size of the site occupied
- likelihood of additional site development generated
- amount of increased energy the site will deamnd
- unique qualities of the site

NEED AUTHORITY FROM THE DEPT OF COMMUNITY AFFAIRS and all local agencies involved

-can get a binding letter of interpretation to tell you if you have a deve. of regional impact

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2 Types of Bid Protests

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Invitation for Bid (IFB) - Lowest, responsive, responsible bidder; Request for proposal- govt. uses other factors than cost to decide

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What can be protested under Invitation for Bids (5)

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- protest specifications before the bid (must protest w/in 72 hours after receiving invitation)
- Single Source v. Multiple source: protest it should have been multiple source
- Protest capabilities of winning bidder
- IFB v. RFP
- rejection of all bids or specific rejection of your bid

Front 63

Bid Procurement Process (9 step process)

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1. Invitation for Bid
2. Dispute specs w/in 72 hours
3. Govt issue intent to award
4. Give notice of INtent to protest w/in 72 hours
5. Formal Writting protest w/in 10 days (no need to send Notice of intent of you file Protest w/in 72 hours)
6. Formal written protest goes to agnecy ( 7 days to agree; if not goes to DOAH)
7. DOAH hearing- Recommended order w/in 30 days
8. Final Order by Agnecy
9. Appeal to DCA
-Procurement process is stopped
- 1% of K price bond required
- bids are public record

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Emergency Procurement Provision

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- must be health, safety, and welfar of the public
- agency head can certify there is an emergency and publish in FAW
- it can be challenged, but usually is not

Front 65

Punishing Contractors from Bidding

Back 65

Disbarred Bidders List
- Discriminatory Vendors: Contractor has discriminated on basis of race, gender, national origin, disability or religion and found guilty...can't be grated for 3 years
- Public Entity Crime: lists any contractor guilty of public entity crime (fraud, teft, conspiracy, etc.) not granted for 3 years; vendor has right DOAH hearing

If on list, you can petition after 9 months each time in a period of 3 years

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Bidding Social Policies

Back 66

Win if tie:
- Buy Florida (company has more than 200 EE in FL)
- Drug Free Workplace (test EE for Drugs)
Set Aside for these groups:
- Minority Business Enterprise (Set aside 10% of procurement dollars)
- Women Owned Business
- Small Business
Preference given to FL Commodities

Front 67

Certificates of Need (what it is and 6 step process)

Back 67

- National Health Planning and Resource Act passed way to contain costs
- CON needed to build/work on hospital facility
- Local councils tell Agency for Health Care Administration (AHCA) whether there is a need:
1) AHCA determines "fixed need pools" twice a year and will authorize programs for that area
2) batching review cycles are established and published in FAW
3) interest parties send letter of intent to AHCA
4) Send application for CON- lcoal council keeps applications on file which have to have enough detail to show them the plans (just to submit fee is $10k plus 15% of expenditures 50k cap) (application forfeited if corrections are required and you don't return within 21 days)
5) AHCA has 60 days to issue notice of intent ot grant CON, published in FAW
6) Interested party has 60 days to contest decision;
a) AHCA sends protest to DOAH for hearing
b) DOAH issues Recommended Order
c) AHCA issues final order and finalizes CON
d) Can appeal w/in 30 days to DCA

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Public Employee Realtions Committee (PERC)

Back 68

state, county, and municipal EE
- EE can unionize but no right to strike
- Separate from DOAH-- has their own ALJ

Front 69

PERC - EE Discipline (4 points)

Back 69

- Career service EE- not management, contract EE, professionals, or probationary EE
- only pertains to certain actions
- If fired and Perc incorrect entitled to benefits and put back into same position
- 4 ways to discipline
1) Discharge
2) Demotion
3) suspension
4) Reduction of Pay

Front 70

Disciplinary Process (8 Step)

Back 70

1) Caues for EE discipline alleged
2) Agency conducts investigation and issues a predetermination letter informing EE of facts and punishment
3) EE can submit informal reply w/in 5 days, but no hearing
4) Agency issue Final Disciplinary Notification Letter with Clear Point of Entry
5) EE submits appeal to PERC w/in 21 days
6) PERC ALJ holds hearing (w/in 30 days); just cause to discipline EE by preponderance fo the evidence; determines if sentence is similar to those in similar context
7) PERC ALJ sends recommended order to PERC Commission
8) PERC Commission issues Final Order

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PERC- Collective Bargaining

Back 71

- all govt. EE have right to Collective Bargaining to be members of a union and enter into collective bargaining agreeemtn
- a collective bargaining agreement is a contract between the union and EE; can bargain for almost anything;
-CANNOT strike like private EE
- public EE have right to either join/not join (open shop state)

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Procedure to Determine Union Representation (7 Steps)

Back 72

1) Labor Union requests PERC to hold an election to determine whether the particular work unit wants or does not want a union
2) Asks for a showing of interest - at least 30% of all EE in the owkr unit must submit a written showing of interest that they want a union
3) If the 30% is met PERC determine the correct bargaining unit and holds na election
4) if 51% of parties voting determine they want a union (If mgmt or union does not think the 30% threshhold or 51% voting parties was improper they can petition to PERC who holds a hearing and makes recommended order to full PERC commission who makes final order which can be appealed)
5) Union and MGM negotiate collective bargainin gagreement that sets forth terms and conditions of EE (discuss K regarding Terms of employment)
6) MGMT and majority of members in the bargaining unit must accept the collective bargaining agreement for it to be implemented
7) Breaching of the terms of the collective bargaining agreement may cause an unfair labor practice (ULP by union: strike/slowdown, distributing union literature on EE premises during work hours; ULP by MGMT: chanign conditions of work w/o consulting union, distributing anti-union literature on work site or during work hours)

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Union Check-Off

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auto transfmittal of union dues to the union, must be agreed to by EE-- must agree to pay union dues from salary automatically to the union

Front 74

Union and Non-union members

Back 74

Union is stuck representing non-union members who do not pay in the collective bargaining process, but not at other times like individual grievances

Front 75

Union Decertification

Back 75

by reverse process: 30% showing to decertify; 51% of voting parties to decertify; can't decertify w/in one year of union certification

Front 76

Breach of Bargaining Agreement

Back 76

If breached, non-breaching side petitions PERC alleging a breach of agreement
- hearing and recommended order
- forwarded to PERC commission for final order
- can be appealed

Front 77

Florida Cabinet (5 members)

Back 77

1. CFO
2. Attorney General
3. Comm. of Agriculture and Consumer Protection
4. Governor

Certain agencies are "cabinet agencies" (DOR, vet affairs, DMV)

Front 78

Birth Related Neurological Injury Comepnsation Act (NICA) Who qualifies?

Back 78

immediately before, during, or post deliever
- weigh at leats 5 lbs
- live birth
- mechanical injury or oxygen deprivation
- permanently disabled

Front 79

Birth Related Neurological Injury Compensation Act (NICA) If qualified, what happens?

Back 79

NICA only remedy, no remedy allowed in tort
- physician pays in, hospital pays in for each live birth not covered by medicaid
- DOAH HO
- is it compensable?
- was there adequate notice they are covered under NICA?
- Compensation: almostalways pays out $100k and pays all medical bills and accomodatiosn to car, house, etc. until adult
ALJ makes final order which can be appealed

Front 80

Baker Act: what is it and who qualifies?

Back 80

- involuntary commitment for mental illness
- must hsow person is mentally ill
(A) refused voluntary treatment
(b) dangerous to himself or others
(c) can't live alone w/o treatement, may suffer abuse/neglect
(d) less restrictive means considered and rejected as inappropriate

Front 81

Baker Act: Who can force Baker Act?

Back 81

Judge takes ex parte affidavits and issues order to baker act
(psychiatrist/psychologist/clinical nurse practioner)

Front 82

Baker Act: What happens to the person?

Back 82

Person brought to a receiving facility where he is held for 72 hours. He is evaluated to determine if they should be held over 72 hours. He is recommended to stay, and sent to treatement for 6 motnhgs. He can file notification for hearing to determine if they should be kept (testimony by treating phsyciatrist). DOAH HO determines if they should be kept. Every 6 months afterward hearing until person relaeased.

penal in nature= clear and convincing

Front 83

Marchman Act

Back 83

- straight through cirucit court, not administrative
- uses a general magistrate
- involuntary tyreatment for alcohol and drug abusers (no self control and will harm themselves/others)
- 60 days initial commitement (if in 50 days not getting better, treatement facility can petition for an additional 90 days)

Front 84

Individuals w/ Disabilities Act (IWDA) (what it is and 4 steps)

Back 84

- child w/ special needs entitled to public eduction
- usually school board on one side and parents on other
1) school board writes certified letter to parents given them Clear point of entry
2) if they don't agree they have right to an admin hearing (AT fees available)
3) HO makes Final Order
4) can appeal to DCA, (appeal to cirucit court for them to conduct their own fact finding or appeal to Federal District Court)
Standard= preponderance of the evidnece