When a Florida licensing agency proposes to deny a professional or business license application, the applicant may have the right to request an administrative hearing.
One of the most important procedural decisions is whether to request a formal hearing or an informal hearing. The correct procedure generally depends on whether the applicant disputes a material fact relied upon by the agency.
Selecting the wrong procedure or filing an incomplete petition may delay the case or affect how the applicant can present the dispute.
Florida’s General Administrative Framework
Florida’s Administrative Procedure Act establishes the general framework for administrative hearings. However, profession specific statutes, agency rules, statutory exceptions, and the notice issued in the individual case may establish different procedures or deadlines. Applicants should review all applicable authorities before selecting a hearing process.
The General Distinction
A formal proceeding under section 120.57(1), Florida Statutes, generally applies when the case involves a disputed issue of material fact. An informal proceeding under section 120.57(2) generally applies when no material facts are disputed.
What Is a Material Fact?
A material fact is a fact that could affect the outcome of the licensing decision. Examples may include disputes concerning:
- Whether the applicant disclosed required information
- Whether a particular event occurred
- Whether the applicant possesses the required experience
- Whether documents were submitted on time
- Whether an application response was accurate
- Whether the agency relied on an incorrect record
- Whether prior criminal or disciplinary conduct was correctly described
- Whether the applicant satisfied a statutory qualification
Not every disagreement is material. A fact is material when resolving it could affect whether the application is approved or denied.
What Is a Formal Administrative Hearing?
A formal administrative hearing is generally used when the applicant and agency dispute one or more material facts.
Unless an exception applies, the licensing agency refers the matter to the Florida Division of Administrative Hearings, where an administrative law judge conducts the proceeding. Certain proceedings may instead be conducted by an agency head, board member, or another authorized presiding officer.
What Does a Formal Hearing Petition Require?
The process begins with a written petition filed with the licensing agency. The petition should identify each disputed material fact, state the facts the applicant believes are correct, explain why those facts support reversal or modification of the proposed denial, identify the applicable statutes or rules, and state the precise relief requested.
What Happens Before the Formal Hearing?
After the matter is assigned, the administrative law judge may enter orders establishing the schedule and procedures for the case. Before the final hearing, the parties may:
- Conduct authorized discovery
- Exchange relevant documents
- Take depositions
- Serve interrogatories or requests for admission
- File written motions
- Identify witnesses and exhibits
- Participate in a prehearing conference
- Discuss possible settlement
- Prepare a prehearing stipulation
- Request that the presiding officer issue subpoenas for witnesses or documents
Discovery in a formal proceeding is generally conducted through the methods provided in Rules 1.280 through 1.400 of the Florida Rules of Civil Procedure. The presiding officer, rather than the parties themselves, issues subpoenas upon a proper request.
Is a Formal Hearing the Same as a Court Case?
No. A formal administrative hearing is not a civil court case, and not every rule used in a Florida court applies.
However, the process includes several similar features. The parties may conduct authorized discovery, file motions, present witnesses and documentary evidence, conduct cross examination, make legal arguments, and submit proposed findings and conclusions. The proceeding is governed primarily by Chapter 120, Florida Statutes, the Uniform Rules of Procedure, applicable agency rules, and orders entered by the presiding officer.
What Happens During the Formal Hearing?
The final hearing generally involves the presentation of evidence and legal argument before the administrative law judge or other authorized presiding officer. Depending on the issues, the parties may:
- Make opening statements
- Present witnesses
- Introduce documents and other exhibits
- Question their own witnesses
- Cross examine opposing witnesses
- Object to evidence
- Present rebuttal evidence
- Address applicable statutes and rules
- Make closing arguments
Oral testimony is generally given under oath or affirmation. The proceeding is recorded by a court reporter or recording equipment, and a party may obtain a transcript at its own expense.
What Happens After the Formal Hearing?
After the hearing, the parties may be permitted or directed to submit proposed findings of fact, conclusions of law, proposed orders, or legal memoranda.
The administrative law judge then generally issues a Recommended Order containing findings of fact, conclusions of law, and a recommended disposition. The parties generally may file written exceptions with the licensing agency within the period established by the applicable rules.
The licensing agency generally enters the Final Order. Its authority to reject or modify factual findings is restricted by section 120.57(1), Florida Statutes. Certain proceedings may be governed by different statutes, and an administrative law judge may have final order authority in some matters.
What Is an Informal Administrative Hearing?
An informal administrative proceeding is generally appropriate when the applicant does not dispute any material facts but disagrees with the agency’s legal conclusion or proposed action.
For example, the applicant may agree that a prior disciplinary event occurred but argue that the governing licensing statute does not authorize denial under those circumstances.
What Does an Informal Hearing Petition Require?
An informal proceeding generally begins with a written petition filed with the licensing agency. In addition to identifying the applicant, agency decision, relevant facts, applicable statutes or rules, and requested relief, the petition must expressly state that no material facts are in dispute.
That statement is significant. An informal proceeding is not intended to decide conflicting factual accounts or make credibility determinations between competing witnesses.
How Is an Informal Proceeding Conducted?
An informal proceeding is generally less extensive than a formal administrative hearing because it is not used to resolve disputed issues of material fact. Depending on the agency’s procedures, the matter may be decided through written submissions, oral evidence or argument, or an appearance before the agency, licensing board, or hearing officer.
The applicant may be permitted to submit:
- A written statement
- A legal memorandum
- Supporting documents
- Affidavits
- Relevant agency orders
- Statutory or regulatory authority
- Appellate decisions
- Other materials explaining why the proposed action should be changed
Some informal proceedings are decided primarily through written submissions. In other cases, the agency may schedule an appearance during which the applicant or counsel may present oral argument, offer oral evidence, and answer questions.
Can an Informal Proceeding Include Evidence, Testimony, or Discovery?
Yes. Section 120.57(2), Florida Statutes, allows parties to present written or oral evidence or submit a written statement challenging the agency’s grounds. The Uniform Rules also contemplate motions, procedural orders, discovery when authorized by the presiding officer, and recorded testimony at a final informal hearing.
The central distinction is not that an informal proceeding can never involve evidence, testimony, or discovery. The distinction is that the proceeding is not designed to resolve disputed issues of material fact.
What Happens if a Material Factual Dispute Arises?
If a disputed issue of material fact arises during an informal proceeding, the informal process generally must be terminated and a formal proceeding conducted unless all parties waive the formal process.
For example, a material factual dispute may arise over whether a document was submitted, whether a disclosure was made, whether required experience was completed, or whether the agency relied on the correct record.
How Do You Decide Which Hearing to Request?
A formal hearing may be appropriate when:
- The agency’s factual allegations are incorrect
- The parties disagree about what occurred
- Witness credibility matters
- Additional factual evidence is necessary
- The applicant needs discovery
- The applicant needs to cross examine witnesses
- The record contains conflicting documents
An informal hearing may be appropriate when:
- The material facts are accepted
- The dispute concerns statutory interpretation
- The applicant challenges the agency’s legal conclusion
- The issue can be decided from the existing record
- No credibility determination is required
Applicants should not select a procedure solely because one appears faster or easier. The choice should be based on the actual issues stated in the agency’s notice.
How Should You Prepare?
For either type of proceeding, the applicant should carefully review:
- The agency’s notice
- The original application
- All supporting records
- Requests for additional information
- The governing licensing statute
- Applicable administrative rules
- Relevant agency orders
- The procedural requirements contained in the notice
- The applicable filing deadline
Preparation for a formal hearing may involve discovery, witness preparation, exhibit organization, motions, and hearing strategy. Preparation for an informal proceeding may focus more heavily on the existing record, written legal analysis, supporting documents, and a concise oral presentation.
The Bottom Line
The difference between a formal and informal administrative proceeding is significant.
A formal hearing is generally used when material facts are disputed and may involve discovery, witnesses, documentary evidence, cross examination, and a Recommended Order from an administrative law judge.
An informal proceeding is generally used when no material facts are disputed and the disagreement concerns the agency’s legal interpretation or proposed action. The matter may be presented through written submissions, oral evidence or argument, or both.
Selecting the appropriate procedure, filing a legally sufficient petition, and complying with every deadline may be critical to preserving an applicant’s ability to challenge a proposed Florida license denial.