EXAMPLE: A state legislature passes a taxing measure that will have a widespread effect on corporations doing interstate business within that state. A payment of the tax with a subsequent refund if the tax is found invalid would result in administrative difficulties. Therefore, one of the affected corporations asks a court for a declaratory judgment on the validity of the tax.
How-To: Write a Petition for Declaratory Statement
| Background: | You need to do something in Florida |
| Problem: | You're not sure how your intended action fits into the state's legal framework |
| Solution: | You ask the appropriate state agency to declare how you must proceed |
I. Definitions
II. Legal Citations
...
"(3) The agency shall give notice of the filing of each petition in the next available issue of the Florida Administrative Register and transmit copies of each petition to the committee. The agency shall issue a declaratory statement or deny the petition within 90 days after the filing of the petition."
III. Samples
| # | Comments | ₧ | |
|---|---|---|---|
| 1 |  | FCHR | 2020. TBD submission. Pro Se Filing. Bribery. §760.06(4) vs Art. I §21 FL Constitution |  |
| 2 | | DOAH | 2013. Attorney Filing. County Schools. After School Program. Rule 6A-6.0910 FAC. | |
| 3 | | DOAH | 2005. Attorney Filing. Environmental Protection. Field Permit. Rule 62B-33.008(13) FAC. | |
| 4 | | DOAH | 2007. Attorney Filing. Department of Health. Invalidate Prior Decl Stat. §627.736 FS. | |
| 5 | | DOAH | 2016. ✓ Granted!!! Attorney Filing. Building Commission. Annual Evaluation. §312.9 FS. | |
| 6 | | DOAH | 2018. ✓ Granted!!! Attorney Filing. Pari-Mutuel. Horses. Slot Machines. §550.3551(6)(a) | |
| 7 | | DOAH | 2019. Pro Se Filing. Fish & Wildlife Commission. Derelict Vessel. §823.11. | |
IV. Templates
| # | Link | Comments | ₧ |
|---|---|---|---|
| 1 |  | Petition | Replace all placeholder tags with real data (eg "[plfName]" becomes "John Doe"). |  |
V. Quick Commentary
- Purpose: Declaratory Statements are used to guide petitioners in future conduct:
- see Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 747 So. 2d 382:
"[T]he purposes of the declaratory statement procedure are to enable members of the public to definitively resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their future affairs."
- see Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 747 So. 2d 382:
- Benefit: Declaratory Statements can help thwart future litigation:
- see Citizens v Fla. PSC, 164 So. 3d 58 (Fla. 1st DCA 2015):
"A declaratory statement of an agency's position may also help a party "avoid costly administrative litigation by selecting the proper course of action in advance.""
- see Citizens v Fla. PSC, 164 So. 3d 58 (Fla. 1st DCA 2015):
- Standard of Review: Two-Part Test:
- The petitioner must show bonafide doubt/dispute
- The judiciary must be incapable of resolving the dispute
- see Couch v State, 377 So. 2d 32 (Fla. 1st DCA 1979):
"...we are of the opinion that in determining the availability and scope of the remedies under the former, we may be guided by decisions under the declaratory judgments statute. It appears that the applicable guiding principle here is that an actual, present and practical need for a declaratory judgment must be shown. Okaloosa County Island Leaseholders Assn. v. Okaloosa Island Authority, 308 So. 2d 120 (Fla. 1st DCA 1975). The deficiencies in the petition, coupled with petitioners' admission of the adequacy of the pending litigation are sufficient *34 to preclude their request for a statement."
- see Couch v State, 377 So. 2d 32 (Fla. 1st DCA 1979):
- IF the agency declines to rule on your Petition for Declaratory Statement then you can appeal
- see §120.68 FS ("...entitled to judicial review.")
- see Rule 9.110 Fla. R. App. P. ("Appeal Proceedings to Review Final Orders...")
- Learn How to File a Notice of Appeal
- Standard of Review = "clear and erroneous"
- see Lennar Homes, Inc. v State, 888 So. 2d 50 (Fla. 1st DCA 2004):
"We review an agency's declaratory statement under the clear and erroneous standard."
"Under this extremely deferential review standard, it is our task to decide simply whether the agency's interpretation of the statutes falls within the range of permissible interpretations..."- accord "logic and reason" from Society for Clinical & Medical Hair Removal v State, 183 So. 3d 1138 (Fla. 1st DCA 2015)
"Indeed, we find that the Board's interpretation gives rule 64B8-56.002(2)(b) its most logical and natural reading and that the Board's harmonization of that rule with the other rules and statutes discussed in the declaratory statement comports with logic and reason."
- accord "logic and reason" from Society for Clinical & Medical Hair Removal v State, 183 So. 3d 1138 (Fla. 1st DCA 2015)
- see Novick v State, 816 So. 2d 1237:
"Review of a final agency order by this court is brought pursuant to section 120.68, and the standard of review is whether the agency's interpretation of the law is clearly erroneous. See Florida Municipal Power Agency v. Dept. of Revenue, 764 So. 2d 914, 916 (Fla. 1st DCA 2000), approved, 789 So. 2d 320 (Fla.2001); Regal Kitchens, Inc. v. Florida Dept. of Revenue, 641 So. 2d 158, 162 (Fla. 1st DCA 1994); Grady v. Dept. of Prof. Reg., Board of Cosmetology, 402 So. 2d 438 (Fla. 3d DCA 1981)."
- see Lennar Homes, Inc. v State, 888 So. 2d 50 (Fla. 1st DCA 2004):
- Successful Appeals:
- "Purely Hypothetical"/"Not Substantially Affected"
- "Seeking a Belated Appeal"
- "Too Broad"
- "Lacked Standing"
- "Clearly Erroneous"
- Important Note #1: Agencies will decline declaratory statements if the statement would amount to a rule:
- see Lennar Homes, Inc. v State, 888 So. 2d 50 (Fla. 1st DCA 2004):
"If an agency is presented with a petition for a declaratory statement requiring a response that amounts to a rule, the agency should decline to issue the statement and initiate rulemaking."
"However, a declaratory statement is not transformed into a rule merely because it addresses a matter of interest to more than one person." - see §120.52(16) for the statutory definition of "rule"
- see Jenkins v State, 855 So. 2d 1219 (Fla. 1st DCA 2003)
- see Dept of Revenue v Vajaria Enters., Inc., 675 So. 2d 252 (Fla. 5th DCA 1996)
- Counterpoint: Rulemaking can be initiated after issuing a declaratory statement
- see Society for Clinical & Medical Hair Removal v State, 183 So. 3d 1138 (Fla. 1st DCA 2015)
"Here, the Board did precisely what was contemplated by the Court in Investment Corp. when it answered the specific question raised in SCMHR's petition for declaratory statement and simultaneously announced its intention to initiate rulemaking on the subject. The fact that SCMHR does not like the answer it got in response to its petition does not mean that the Board exceeded its authority in issuing the declaratory statement in this case. Indeed, if SCMHR was of the view that the issue raised in its petition could only be addressed by rulemaking, it should have petitioned for rulemaking under section 120.54(7) instead of a declaratory statement under section 120.565. See Investment Corp., 747 So. 2d at 385-86."
- see AHCA v Wingo, 697 So.2d 1231 (Fla. 1st DCA 1997)
"However, as we observed in Florida Optometric Association, when an agency is called upon to issue a declaratory statement "which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking""
- see Society for Clinical & Medical Hair Removal v State, 183 So. 3d 1138 (Fla. 1st DCA 2015)
- see Lennar Homes, Inc. v State, 888 So. 2d 50 (Fla. 1st DCA 2004):
- Important Note #2: Agencies do not have the power to interpret Constitutions:
- see Carr v Old Port Cove, 8 So. 3d 403 (Fla. 4th DCA 2009):
"In addition to the abovementioned limitations, a declaratory statement may not be used to decide constitutional issues."
- see Carr v Old Port Cove, 8 So. 3d 403 (Fla. 4th DCA 2009):
- Important Note #3: these petitions are not the proper means for challenging an agency decision:
- see BJL v State, 558 So. 2d 1078 (Fla. 1st DCA 1990):
"A petition for a declaratory statement under Section 120.565 is not the appropriate means to challenge agency decisions."
- see BJL v State, 558 So. 2d 1078 (Fla. 1st DCA 1990):
- Important Note #4: you must have standing in order to be granted a Petition for Declaratory Statement:
- see Federation of Mobile Homeowner's v State, 479 So. 2d 252 (Fla. 2d DCA 1985):
"The requirements for standing on the part of an association were spelled out as follows:
[W]e have concluded that a trade or professional association should be able to institute a rule challenge under section 120.56 even though it is acting solely as the representative of its members. To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule. Further, the subject matter of the rule must be within the association's general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members." - 4-Part Test for Appellate Standing:
- see Federation of Mobile Homeowner's v State, 479 So. 2d 252 (Fla. 2d DCA 1985):
- Important Note #5: Agencies will decline to issue a Declaratory Statement if there is pending litigation:
- see Fox v State, 395 So. 2d 192 (Fla. 1st DCA 1981):
"...declaratory statement proceedings, by analogy to Chapter 86, Florida Statutes, are not properly filed on issues simultaneously litigated in judicial or other administrative proceedings of the character here involved."
- see Fox v State, 395 So. 2d 192 (Fla. 1st DCA 1981):
- Definition for "Substantial Interest": Two-part test:
- see Fla. Optometric Ass'n v State, 567 So. 2d 928 (Fla. 1st DCA 1990):
- the person must allege that he/she will suffer injury in fact which is of sufficient immediacy to entitle him to a §120.57 hearing; and
- the person must allege that his substantial injury is of a type or nature which the proceeding is designed to protect
- see Fla. Optometric Ass'n v State, 567 So. 2d 928 (Fla. 1st DCA 1990):
- You can Request a Hearing on your Petition for Declaratory Statement.
- see 28-105.0024(6) FAC
- see 28-106.111 FAC
- see §120.57 FS
- see Fla. Optometric Ass'n v State, 567 So. 2d 928 (Fla. 1st DCA 1990)
- Please download as many sample documents as you'd like
- Contact TBD for more free samples
- Feel free to use the template (see Part III - above) to help draft your 'Petition for Declaratory Statement'
- Save the final version as a PDF file.
- File the final version with the FCHR
VI. Additional Notes
- Ministerial Duty. According to §120.565 and 28-105 FAC, state agencies have a ministerial duty to provide you a Final Order within 90 days.
- If they fail to do so, however, then you can compel them with a Writ of Mandamus
- Click Here to Learn How
- If they fail to do so, however, then you can compel them with a Writ of Mandamus
- Before 1996, Petitions for Declaratory Statements could be aimed at addressing a single individual's situation only. After '96, they could be addressed to a situation that multiple people could encounter.
- Appellate Interpretation: A Declaratory Statement is the administrative equivalent to the judiciary's Declaratory Judgment
- The Florida Administrative Register used to be called the Florida Administrative Weekly
- The "Weekly" title was literal, because the government issued it only once per week.
- And the files were much larger (1.25MB vs 0.25MB)
- On-or-around October 2, 2012, the government began releasing them on a daily basis
- The "Weekly" title was literal, because the government issued it only once per week.
- Section VII (Notice of Petitions and Dispositions Regarding Declaratory Statements) of each Florida Administrative Register is dedicated to notifying the public of Petitions for Declaratory Statements
- Therefore, you can always check FAR for any such petition.
- §120.54 FS provides state administrative agencies with rulemaking authority
VII. Additional Resources
- §2.41 Florida Administrative Practice Manual (11th Edition)
- LexisNexis®
- Florida Bar, The
- © 2017
VIII. Bibliography
- Abbott Labs v Mylan Pharmaceuticals, Inc., 15 So. 3d 642 (Fla. 1st DCA 2009)
- Adventist Health System v State, 955 So. 2d 1173 (Fla. 1st DCA 2007)
- AHCA v Wingo, 697 So.2d 1231 (Fla. 1st DCA 1997)
- BJL v State, 558 So. 2d 1078 (Fla. 1st DCA 1990)
- Carr v Old Port Cove, 8 So. 3d 403 (Fla. 4th DCA 2009)
- Chiles v Department of State, Div of Elections, 711 So. 2d 151 (Fla. 1st DCA 1998)
- Citizens v Fla. PSC, 164 So. 3d 58 (Fla. 1st DCA 2015)
- Couch v. State, 377 So. 2d 32 (Fla. 1st DCA 1979)
- Dept of Revenue v Vajaria Enters., Inc., 675 So. 2d 252 (Fla. 5th DCA 1996)
- Federation of Mobile Homeowner's v State, 479 So. 2d 252 (Fla. 2d DCA 1985)
- Fla. Optometric Ass'n v State, 567 So. 2d 928 (Fla. 1st DCA 1990)
- FL Dept. of Revenue v. FL Municipal Power, 789 So. 2d 320 (Fla. 2001)
- FL DPR, Division of Pari-Mutuel Wagering, 747 So. 2d 382
- Florida Municipal Power Agency v. Dept. of Revenue, 764 So. 2d 914, 916 (Fla. 1st DCA 2000)
- Fox v State, 395 So. 2d 192 (Fla. 1st DCA 1981)
- Grady v. Dept. of Prof. Reg., Board of Cosmetology, 402 So. 2d 438 (Fla. 3d DCA 1981)
- Investment Corp., 747 So. 2d at 385-86
- Jenkins v State, 855 So. 2d 1219 (Fla. 1st DCA 2003)
- Kahn v State, 881 So. 2d 699 (Fla. 1st DCA 2004)
- Lennar Homes, Inc. v State, 888 So. 2d 50 (Fla. 1st DCA 2004)
- Novick v State, 816 So. 2d 1237
- Okaloosa County Island Leaseholders Assn. v. Okaloosa Island Authority, 308 So. 2d 120 (Fla. 1st DCA 1975)
- Regal Kitchens v State, 641 So. 2d 158 (Fla. 1st DCA 1994)
- Society for Clinical & Medical Hair Removal v State, 183 So. 3d 1138 (Fla. 1st DCA 2015)
IX. Conclusion
With the use of the template (as well as the samples above), you can more easily petition your state agency (eg, the FCHR) for a Declaratory Statement.
...POINTS & THINGS...
Please get the justice you deserve.
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www.TextBookDiscrimination.com
