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56 Cards in this Set
- Front
- Back
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What are the 3 branches of the government and list their functions
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1. Legislative: Makes the Law, defines crimes
2. Executive: Implements the Law, executive Agencies 3. Judicial: Rules on the Law; grades the law, regulates legal profession |
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Define Invalid delegation of legislative authority
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When a legislature sometimes delegates its functions to an executive agency, that starts making law themselves; (once an agency makes a rule/reg and it goes through the process, then the rule becomes law and is just as good as law enacted by legislature
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Define Invalid exercise of delegated legislative authority
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1. Leg has already correctly told agency to implement the law and in exercising this, the agency has not done so correctly, the exercise is wrong…e.g. they have gone too far (this is what happens usually)
2. If the agency does not follow delegated authority, the agency has gone beyond what the legislature wanted it to do. A proposed/existing rule is an IEDLA if any one of the following applies: a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter b) The agency has exceeded its grant of rulemaking authority c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented d) The rule is vague e) The rule is arbitrary or capricious f) The rule imposes regulatory costs which could be reduced by the adoption of less costly alternatives that accomplish the statutory objectives |
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What is a "Rule"
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1. Defined in §120.52(15) Statements of general applicability that implements, interprets, or proscribes a law or policy. *** Create rights/require compliance or otherwise to have the direct and consistent effect of law
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What are the requirements for a rule to be placed in the FAC (Florida Admin Code)
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1. To be put in FAC (Florida Admin Code), rule must be of general applicability
a) General applicability: applies to more than 1 specific case, usually more that one instrumentality, statewide or regional situations, must be relevant to more than one person, company or city (It is something that could be debated, whether or not it is general applicability) (e.g. Tampa Bay would prob be gen app) (generally territorial) |
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Who can challenege a RULE?
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To challenge a rule you must be substantially affected by the rule.
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Must activities done via rule be published in the FAW
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Yes, anything done with a rule MUST be published in the FAW
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What are the 3 elements of Administrative Due Process
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1. Notice
2. Right to a Hearing 3. Right to Judicial Review - Appeal to the DCA |
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What is the function of the Joint Administrative Procedures Committee
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1. Oversight panel, job is to make sure that when these agencies make rules, that they are not IELA, not going overboard;
2. Anytime rules are made, they are sent to this committee and it must determine that the rule meets all the elements of F.S. 120.52 and that Due process has been provided for; If the committee is not satisfied they can tell the agency to revise; If it fails to revise..then the JAPC can do the following: cut off funding 3. Legislative comm. That makes sure agencies are properly passing rules |
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List the 6 steps in the flow of Administrative Cases
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1. Workshop and Rule development (The group has 14 days to request a workshop)
2. Proposed Rule in FL Admin Weekly/Existing Rule in FL Admin. Code 3. Petition to DOAH (Division of Administrative Hearings) 4. Hearing The hearing is usually scheduled within 30 days 5. Final Order rendered by ALJ (Admin Law Judge) This will usually contain the 1)Finding of Facts 2)conclusion of law 3) Recommendations. 6. Agency or Petitioner appeals to District Court of Appeal (DCA) |
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Under what circumstances is rulemaking not feasible?
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a)Agency needs more time to gather expertise on the subject of the rule (needs more time or experience)
b)Related matters not sufficiently resolved to start rulemaking (relates to not having enough information) agency affirmatively states they need more knowledge or information c)Agency is currently engaged in rulemaking concerning the subject of the policy |
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Define "Standing"
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1. Must have it to be in an administrative tribunal
2. Must show that you are substantially affected; must show that you are injured and that your injury is in the zone of interest (that the statute covers, was meant to cover your injury) 3. To have standing, you must show that proposed rule will cause a substantial and immediate injury to you and you are within zone of interest that is protected by the statute |
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What are Intervenors
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1. 3rd parties that intervene after action has commenced
2. In rule area, must show standing; must show that they represent a group that is substantially affected (if representing a group) and in the zone of interest (if one person then must show that you are sub aff, and in the zone of interest) |
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Who has the burden of proof when challenging a proposed rule
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burden is on the agency to show preponderance of the evidence that the rule is constitutionally sound
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Who has the burden of proof when challenging a existing rule
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burden on challenger to show preponderance of the evidence (reason the burden is on the challenger is b/c the rule has gone through the due process already, it is as though the challenger is challenging law) that an existing rule is invalid
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burden on challenger to show preponderance of the evidence (reason the burden is on the challenger is b/c the rule has gone through the due process already, it is as though the challenger is challenging law) that an existing rule is invalid
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1. To challenge only the constitutionality of a statute or existing rule and when there is no factual determination to be made, only legal; you do have the right to go to circuit court (agencies do not have the right to rule on constitutionality) Proposed rules, even if it is constitutionality goes to DOAH
2. DOAH and ALJ cannot decide these issues 3. DOAH can only consider a proposed rules and its constitutional ramifications 4. Courts are always looking to DOAH to have good transcripts, so that on appeal they have good record |
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What is Free Form and what does it involve
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Free form is the investigative part of what a agency does prior to initiating a action. The investigators perform work on the case by interviewing, reviewing and discovery.
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For a agency to enact a emergency rule there must be a immediate danger to the public concerning
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Safety
Health Welfare |
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How long will a emergency rule remain effective
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Emergency rules are only effective for 90 days. After 90 days they must go into regular rulemaking process before the 90 days to make it a regular rule
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When do emergecy rules become effective?
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They become effective as soon as they are filed.
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What are some of the requirements for emergency rules
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1. Must have fair procedures
2. Must be published in FL admin, 3. Must have the possibility of review before DOAH (someone who is sub affected by it, can’t go to court on these rules unless attacking constitutionality) 4. Agency has to show a reason for the rule |
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Does DOAH have "final order" in a appeal case?
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1.DOAH has Final Order authority in certain cases: which means that the order must be appeald to the DCA. DOAH has final order in these areas:
a) Policy challenge (should be a rule) b) Proposed rule c) Existing rule d) Summary hearings |
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how are attorney fees handled for a proposed rule
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Attorneys’ fees/costs awarded to prevailing party unless agency can demonstrate substantial justification for proposed rule (when proposed/established, justified in law and fact) (generally they can show that its substantially justified)
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How are attorney fees handled for a existing rule
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Attorneys’ fees/costs awarded to prevailing party unless agency can demonstrate substantial justification for existing rule
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How are attorney fees handled for a policay that was not made into a rule
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Attorneys’ fees/costs will be awarded, unless the agency demonstrates a federal mandate for policy (DOAH hearing officer then has a hearing to determine fees and costs)
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How are attorney fees handled in a unsuccessful to a agency action in rulemaking?
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4. Unsuccessful challenger to agency action in rulemaking will have to pay attorneys’ fees/costs if challenger is filed for an improper purpose (obvious that no research was done into the law & facts, yet you challenged anyway)
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As of 2008, what is the limit to the awards of attorney fees
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$15,000.00
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What are the 5 steps in the process of petitioning a agency to create a rule
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1.When you want the agency to make a rule; you send a petition to the agency and tell them why you want them to make the rule
2.If Agency does not have rule or policy, the agency can consider it and within 30 days the agency has to tell you whether or not they are going to initiate rulemaking, If they wont do it, go to your legislator 3.The point is that you cannot force an agency to make a rule 4.If the agency already has a policy in place covering the particular area someone petitions; then the agency must initiate rulemaking within 30 days or publish a notice in FL Admin weekly for a public hearing to make the policy a rule 5.If the policy affects you directly; (e.g. revoking a license) then you can petition with the DOAH) |
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What is the flow if administrative cases in a quasi judicial procedure?
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1. Notice is filed by the party.
2. petition is sent to the relevant agency. 3. Petition referred to DOAH by agency 4. Hearing is held. 5. ALJ recommends order to the agency 6.Agency or department reviews and issues a final order. 7. Appeal to DCA, if necessary. |
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what is contained in a DOAH recommendation order?
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Findings of Fact
Conclusion of Law Recommendations |
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Who or what group is protected under the "Equal Access to Justice Act"?
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It applies to small businesses of 25 or less employees. Can not be 1 person and must be some
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Does EAJA apply to rule making?
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NO..EAJA only refers to admin adjudications
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Can you get attorney fees in a quasi judicial action?
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You can, but it is very unlikely. Fees are only awarded if you can show that the other party participated in a improper action
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If you are planning on protesting the award of a bid. How long do you have submit your INTENT to protest
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72 hours
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After you have submitted your intent to protest, how long do you have to submit your formal protest
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10 days
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What is a IFB
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The main thing that makes a IFB different is that it is awarded to the lowest bidder. The agency doesn't care if one product is better than the other, they only care about which is cheaper.
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What is the main difference in a RFP
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A RFP is very vague and ask for a solution,not a item (i.e. A plane that can carry 200 people). Each contractor can submit their own solution and the agency determines which is the best. Doesnt care about which is the cheapest, looks for the best solution.
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Must you always file a intent to protest
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No, if you submit the formal protest during the first 72 hours, then you do not have to submit a intent to protest.
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who has the burden of proof in a bid protest?
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In a bid protest the protestor has the burden and has to show by a preponderance of evidence that they were treated unfairly
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If a agency submits a RPF or IFB, do they have the right to reject all bids?
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Yes, the agency can reject all bids. They can reject it because of no need, all bids sub-par or all bids were over cost estimates.
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If a person wins a award, what must they do next.
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The winner must present a bond of usually 1% of the award. This is incase the company backs out. If this occurs then the agency will keep the bond and also try to get attorney fees
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What is a sole source contract?
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If the agency believes that there is only 1 company that can complete the contract, then the agency will award it to the company and by-pass the bid process (see Halliburton contracts)
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What is the EPA?
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Environmental Protection Agency, the agency that is task to enforce the National Environmental Policy Act. This agency develops the minimum standard for the states. They do not have the ability to enforce these standards.
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What is the DEP?
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Florida Department of Environmental Protection. This is the enforcement arm of the EPA. They have agents in the field that ensure that the state is within guidelines.
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What is "permitting"?
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This is a approval notice allowing you to make changes to the structure of the enviroment. This is granted by the Florida DEP. The steps involvged are the following:
1. Notice of intent to grant or deny (the DEP has 30 days to evaluate your application to determine if it is complete or not). The DEP has 90 days to approve or deny it. there is no default rule, because this is a federal program. If there is no response in 90 days, then you must complain. 2. DOAH hearing (you have the ability to complain why are you being denied or why a particular group is getting approved.) 3. Final Agency Order 4. DCA |
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Define a "violation"
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This is the section where a person has violated a law. The steps are:
1. Warning letter to the violator. This is done to warn the person that you are aware they are going to violate or have already violated a law. The letter doesn’t start the process. 2.Consent (orders): the party that has violated the law will try to mitigate what they have already done (Tom has cut down the trees and violated a law. Tom will mitigate the problem by planting new trees 3. Notice of violations : the person has screwed up and not here comes the penalty. |
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What is the function of the Department of Community Affairs (DCA)
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This is the agency that grants authority for DRI. The Department of Community Affairs is the state's land planning and community development agency. Its role is to assist Florida's communities as they meet the needs of Florida's ever-expanding population. The Department ensures that new growth complies with the state's vital growth management laws, while also helping established communities revitalize their older or traditional neighborhoods.
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What is the function of the Development of Regional Impact (DRI)
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This is under the authority of the DCA. A DRI is something that will affect a large population or environment. An example of this would be a large amusement park, shopping center, new university, etc. If the project you are planning on doing is a DRI, then you will have to get a the DCA’s approval, EPA, and other local and regional agencies. (the only thing that you really need to know is that what a DRI is, don’t need to know how they are determined)
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What is the Public Entity Crime list (287.133 F.S.)
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A list that is maintained by the federal agency of any company that has been conviced of a crime. This would void a person from submitting a bid. You can protest being on the list, but the DOAH officer has the final say. (Can not appeal to the DCA)
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What is the federal discrimination list (287.134 F.S)
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This is a list of companies that have been convicted of discriminting against a person or group of people. Once a company is on this list, they will stay for 3 years before they can be removed, you can request to be removed after 6 months. You can protest being on the list, but the DOAH officer has the final say. (Can not appeal to the DCA)
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What are some of the federal bidding set-aside programs in Florida?
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Buy Florida Act
Minority Business Set aside (8a) Women owned business set aside Small Business Set aside Drug Free Workplace. |
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What are the 4 areas that the PERC has jurisdiction over
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Dismissal
Suspension Demotion Pay reduction |
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A Certificate of Need is a process that is involved in what type of issues
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Issues regarding health care. If a group would like to build a hospital, add a wing to a hospital or buy large equipment then they would have to go through the CON process.
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Why is there a CON process
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Because health care has a major impact on the citizens the government doesn't want too much competition. Too much competition would eventually cause some hospitals to go out of business.
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Once a CON is approved, how long do you have until the CON expires
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18 months
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What would happen if you decide to build a hospital without getting a CON appoval?
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The state would likely fine you $1000 per day.
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