The (almost) everything you ever wanted to know about DOAH, Administrative Law Judges, and FINAL ORDERS Guide (dated May 29th 2018).
This Guide also contains our Administrative Law Section Newsletter Contents Guide for articles pertaining to DOAH which can be found HERE.
In part 1 of the complete guide to DOAH, we offer an overview of the Division, it’s mission as an organization and how it provides a Florida quasi-judicial administrative legal process.
In part 2 of the Complete Guide to DOAH, we get to know each ALJ a little better.
Who are the Current Administrative Law Judges (ALJs)?
5 Administrative Law Districts
The Division of Administrative Hearings (DOAH) conducts administrative evidentiary proceedings in Florida, which are nonjury quasi-judicial hearings in which the Administrative Law Judges (ALJs) decides both questions of fact and law that involve:
In 1974, Florida founded its Division of Administrative Hearings (DOAH). The Division, or “DOAH,” is Florida’s central (but not only) body for reviewing cases related to administrative law. Florida modeled DOAH after California’s Office of Administrative Hearings. This was at the beginning of a national trend. Since its creation, twenty-three (23) other state governments have created central panels in which cases are heard by ALJs. The Federal Government adopted the Administrative Procedure Act in 1967. Local governments have similar quasi-judicial tribunals with Hearing Officers or magistrates.
DOAH was not established by the Florida Constitution. It is NOT an article V Court. Although it technically operates under the Department of Management Services (DMS), it reports to the Cabinet and Governor, who together constitute the Administrative Commission. This body appoints, by majority vote, DOAH’s Director. The State Senate, however, is responsible for confirming this appointment. Should the Director of the Division need to be removed, the Governor, Cabinet, and Senate would repeat this process to vote on the dismissal and successor in the same way.
– Jim Konish
Rather than being lumped in with other agencies that receive their funding from general revenue, DOAH’s operating budget comes from an independent pool of money. The amount in this “trust fund” is linked to the amount of labor DOAH performs on behalf of the administrative agencies that it hears cases about. DOAH bills agencies for its services.
Much like how budget proposals for the judiciary are sent straight from the presiding Chief Justice to the Florida House and Senate, DOAH also directly sends its budget to the Legislature. If DOAH falls subject to budget actions undertaken by the Governor’s Executive Office, the Director may protest by contacting the Administrative Commission with an appeal. The Administrative Commission then rules on the issue by majority vote. The Division’s quasi-independence under the Department of Management Services (DMS) comes into play when considering budget matters. While DMS must grant DOAH the “administrative support and services” that DOAH’s Director requests, it has no authority to dictate the Division’s decisions on matters of its staffing, purchasing, real estate transactions, or budgetary issues.
There are 32 DOAH Administrative Law Judges (ALJs) who have the task of hearing and deciding cases, with 1 position currently open. The ALJs are assigned to administrative, managerial roles, or hearing cases in regions and areas of administrative law. DOAH ALJs earn around $120K annually.
The Administration Commission, consisting of the governor and the cabinet, appoints a Director to head DOAH, and the appointee must be confirmed by the Senate. The Director serves as DOAH’s Chief Judge and can appoint a Deputy Chief Judge. The DOAH Chief Judge and Deputy Chief Judge have administrative duties and (just as their “line judge” co-workers) conduct formal hearings.
The Chief Judge is charged with the duty to hire the ALJs responsible for hearing DOAH’s caseload. F.S. §120.65 (2017) requires that all DOAH ALJs be members of The Florida Bar with a minimum of five (5) years of experience practicing law. The minimum qualifications for ALJs established by §120.65 are identical to the minimum requirements for Circuit Court Judges established by Fla. Const. art. V, §8. However, as discussed in more detail in a subsequent section, the qualifications of the Division’s current ALJs far exceed the statutory minimums.
Apart from the Administrative and Environmental areas of law, the ALJs are assigned to 3 regions of Florida. The North, Middle and South. The Northern District covers the entire Western panhandle across to Nassau County and finishes as far south as Volusia Counties, Lake, Sumter and Hernando. The Middle District starts at Seminole, Orange, Polk and Pasco, Polk, Orange, and ends in the south with Collier County. The Southern District includes Palm Beach, Broward, Dade, and Monroe Counties. In some cases, however, overlap of areas naturally occurs.
– G Chisenhall
“So here’s the ideal ALJ: strong academic credentials; hand-on trial experience, preferably in administrative law; excellent writing skills; and a good, moderate judicial temperament.” – Robert S Cohen on the qualities he looks for in an ALJ when appointing them.
ALJs are key employees within DOAH. While they are considered career service employees, like Article V judges, the salary of these ALJs is set and cannot change unless voted on by the legislature. The Division’s Director, and Executive Administration Commission, oversee the tenure of these ALJs.
An ALJ can, theoretically, be appointed to the Division after they have been a member of the Florida Bar for only five (5) years. This, however, is the minimum experience required, and most sitting ALJs are vastly more experienced. The average ALJ has been a member of the Florida Bar for more than twenty-five (25) years.
The ALJs within the Division are unusually devoted to their line of work, and, once installed, they tend to remain with DOAH for decades. In the more than forty (40) years since its creation in 1974, only 69 judges have ever served Division of Administrative Hearings. Today, just over thirty (30) administrative law judges work for the Division, with 30 typically hearing cases, and two (2) working in more administrative capacities.
The DOAH is functionally impartial, since its cases are heard by a central panel of ALJs. This administrative framework also encourages its ALJs to be impartial, highly accountable, professional, and conscious of economies of scale.
If it is to be just and fair, impartiality must be the key to the effective operation of any system of adjudication or record-making. Parties in a dispute cannot place their full faith in a ALJ who, either through personal stakes or the interest of the agency that employs them, may be tempted to rule on the basis of their own personal biases.
The centralized organization of DOAH discourages partiality in a number of ways. Most importantly, it gives ALJs independence. The Division operates as an independent agency, accountable only to the Legislature on matters of planning and budget. It conducts hearings in a separate building committed to privacy and impartiality. By the very structures, both physical and bureaucratic, that surround them, an ALJ is protected from pressure that citizens or agencies alike might be tempted to exert on the ALJs.
DOAH minimizes the exposure of ALJs to “ex parte” contacts, who might attempt to influence the result of a dispute. In the interests of keeping their ALJs independent, and the rulings unbiased, ALJs operate out of a central location. When agency expertise is required in a case, agency witnesses, rather than ex parte contacts, are called in, and clarification or additional information can be requested from them via cross examination. Testimony from citizens and independent experts from the private sector are also utilized, as it can introduce new information previously unknown to the agency.
Hearing these cases through a centralized panel, rather than in scattering of independent agencies, creates impartiality because it tends to generate a regular decision-making process. An ALJ will prepare the same administrative records, research the same statutes, administrative rules and orders, conduct the same information-gathering process, and work to seek fair, impartial results many times over the course of a year, generally working in the same way. Though the head of an agency can rule differently than an ALJ, they are limited in their decision-making power. Open hearings and review in the judicial district courts of appeal restrain an agency’s ability to make totally arbitrary or capricious decisions.
When ALJs operate under one central Division, they are more accountable for their productivity. While an impartial ALJ can never and should never be punished for the results of their decisions, ALJs can and should be responsible for how quickly and efficiently they get to those decisions.
The Director of DOAH reports to several different elected officials and agencies. This joint accountability protects the Division: no one individual is supposed to be able to effectively exert their political influence on a case. This does not mean, however, that the Division reports to no one. The Director, not agency heads, is responsible for the ALJs. As Career Service Employees, the ALJs are somewhat protected from changes in Director, but they still look to the Director as their leader on matters of productivity and accountability.
A variety of rules and statutes exist which dictate the efficiency of the Division. For example, the hearing for a bid protest must start no later than thirty (30) days after the Division receives a request for such a proceeding, and the Division must enter a Recommended Order no later than a month after it receives a transcript of the case. When a case involves an exceptional education student, the timeline is also compressed: the ALJ has only 45 days to enter a Final Order after they receive a request for a hearing. Other situations, like rule challenges, which have only forty (40) days to go from filing to hearing, and thirty (30) days after the hearing for a decision, and summary hearings, have their own procedures that force them all to be resolved quickly.
The Division possesses a unique bird’s-eye view of Florida’s administrative agencies and other bodies it hears cases from. The DOAH and its ALJs could, in theory, provide the Legislature and Executive Branch with comprehensive and unbiased overviews of how successful agency programs are, based on how well agencies do in their respective division hearings. The Division sees the agencies at their most vulnerable when agency policies collide with the substantive interests of the state’s citizens or their representative bodies. Some agencies respond to these challenges efficiently and prove, by repeated trial, that their policies are reasonable and transparent. Other agencies get mired in tangents and repeatedly get involved in lengthy, messy legal disputes. DOAH’s independent, centralized status makes it a valuable potential source of commentary on how various agencies are being managed.
ALJs on the Division’s central panel are both generalists, who are exposed to a wide variety of substantive law, and specialists, who have keen understandings of the administrative process. In the course of their work, an ALJ will be exposed to programs from many agencies. This big-picture view encourages the ALJ to make connections that a comparable decision-maker on a single agency may miss. Throughout all of this, they constantly hone their understanding of the process.
The central panel of ALJs benefits from being physically united in one building. United with their judicial peers and insulated from agency influence, the ALJs can work to a high professional standard.
Uniting the DOAH ALJs in a central location encourages cost-saving strategies, which keeps the Division’s budget in check. However, the DOAH database has serious flaws. All DOAH administrative Recommended, Final and/or appurtenant FINAL ORDERS are not to be found on the Division’s database, and often are not searchable as required by Chapter 120.53 of the 2017 Florida Statutes.
There are three (3) types of proceedings:
These latter two (2) category of non-DOAH proceedings result in FINAL ORDERS without Recommended Orders that are important in many ways.
Some agencies must use DOAH ALJs; other agencies choose to use DOAH ALJs; and some agencies have their own Hearing Officers. Each agency is different. All agencies conduct their own informal hearings and issue non DOAH FINAL ORDERS in response to Declaratory Statements, Rules Variances and Waivers, informal hearings and informal dispositions, etc.
Some noteworthy cases that would be heard by ALJs for disposition by a Final Order are Department of Revenue (DOR) – Child Support Enforcements, Workers Compensation Claim Disputes, Agency for Health Care Administration (AHCA) Medicaid Lien on Personal Injury Settlements and Birth-Related Neurological Injury Compensation cases. DOAH also has Final Order authority over proposed, unpromulgated and rule validity challenges, as well as in certain attorneys’ fees cases. Over the years, the Division has obtained creeping but by no means blanket Final Order authority.
Not all cases are heard in person by a DOAH ALJ. Sometimes, the parties agree to proceed by filing written statements, exhibits and stipulations of fact. However, if a hearing is required, it could be in person or may be scheduled via telephone. The Division maintains eleven (11) teleconferencing sites, which allow it to hold remote hearings via video teleconferencing. These key sites, which include Pensacola, Tallahassee, Jacksonville, Daytona Beach, Orlando, Tampa, Ft. Myers, West Palm Beach, Ft. Lauderdale, Miami, and Key West, were established in spring of 1994. Video teleconferencing decreases the amount of time and the cost of travel for Division employees, which, in the past, has been a considerable expense for the Division.
Unlike jury trials, where the testimony of eye witnesses is important, administrative hearings tend to revolve around a set of evidence established in written correspondence between agency and citizen, so administrative hearings are prime candidates for this still-developing technology. Nowadays, there is an option to use webcast technology.
DOAH has used its centralized management to switch to an online docket system. It hosts its recommended and some FINAL ORDERS on its website. The online docket system is designed to include every document filed in a case. Because the Division is so centralized, parties can track the progress of their cases as the orders are docketed. While it was an early adopter of online database systems, it has fallen behind the times and its database has become difficult to search, leading its would-be users to other options.
It is worth noting that the official DOAH database cannot be comprehensively searched as many DOAH database orders are in PDF format only.
In many instances of the Administrative Law Section Newsletter, Jim Konish is referred to with reference to his extensive Florida Administrative Law (FALR) database. A leader in the publication and indexing of State Administrative caselaw, Jim has compiled an unparalleled Florida Administrative Law (FALR) database at www.falr.com.
FALR offers a reliable, complete, trustworthy online legal research service for lawyers and others. Our FALR online database is not only supported with case summaries and the ability to sort alphabetically and hierarchically, but it is also a completely accessible, keyword-indexed online database which can be trusted as a research tool of integrity as all orders have been published, summarized and indexed in the FALR since January 1996.
– Testimonial, Legal Asst.
Lawyers and students of law alike can purchase an affordable membership to access this comprehensive Florida administrative law resource. Recently, the entire DOAH database with appurtenant metadata has been added, along with all orders for the:
Users can search the databases in a number of ways, including:
It is worth noting that on the original sources of the add-on databases, users cannot do a keyword search, making the FALR online database a superior legal research tool.
FALR is in the process of adding the following Databases:
The DOAH Database unfortunately does not include numerous appurtenant FINAL ORDERS, non DOAH FINAL ORDERS and/or Recommended Orders, and arbitrarily omits broad categories of orders under the pretext of being “confidential.” Any order in which a party appears by initials only is not included in the DOAH database. Examples would be Exemption From Disqualification From Employment, (DCF, AHCA, DJJ & APD), and student entitlement to special education orders.
At FALR, our firm has never published a single Division of Administrative Hearings (DOAH) “Recommended Order” – without the appurtenant Agency “Final Order,” if not exceptions merely incorporated by reference. We publish ANY pertinent order we obtain. We accept submittals for publication.
Our analysts at FALR recently calculated that as of February 7th, 2018, the DOAH Database had a total of 142,780 orders. However, 137,565 of those Recommended Orders are published without any appurtenant Final Order! Unable to obtain blanket FINAL ORDERS authority, the DOAH Database portrays Recommended Orders as Final (by omission)! Caselaw explains that a DOAH Recommended Order without the appurtenant Final Order is a nullity.
One does not know whether the FINAL ORDERS absent from the DOAH database are because the Agencies never entered a FINAL ORDER, failed to send the Final Order to DOAH, or because DOAH simply failed to publish the Final Order at all, or merely in a non-readable pdf format.
The DOAH Database has a total of 5,215 Recommended Orders along with the appurtenant FINAL ORDERS. However, the FALR database has 12,813 FINAL ORDERS and appurtenant Recommended Orders selected from key agencies that practitioners follow closely.
Moreover, we have vigorously and independently searched for and published all DOAH FINAL ORDERS regarding Proposed, Adopted, or Unpromulgated Rules, Attorney’s Fee Awards, the Birth-Related Neurological Injury Compensation Plan, etc., as well as any Appellate Court Opinion pertaining to Administrative Law since January, 1984.
We also have always and continue to publish agency FINAL ORDERS that do not go through DOAH such as Rule Variances or Waivers, Declaratory Statements, precedential orders after informal hearings or cases in which the agency itself conducts the hearing or disposes of the case or motion without a hearing (i.e. attorney’s fees and costs awards).
Finally, we maintain both archives and directories of unpublished agency FINAL ORDERS back to 1988, and further beyond back to 1979 in certain areas. These materials have been and can be researched or converted into searchable databases upon request.
Section 119.021 (3) provides “Agency FINAL ORDERS… have continuing legal significance… (and) each agency shall permanently maintain records of such orders.”
An applicant withdrew its permit application after DOAH conducted a Formal Hearing and issued a Recommended Order, DEP explains “arguments of counsel in a formal proceeding, when not later endorsed by the agency head in a Final Order are of no value in providing agency practice or previous interpretations of rules and statutes.”
When using the DOAH database one is left guessing as to whether a naked DOAH Recommended Order is so because:
1) no appurtenant Final Order has ever been issued
2) no appurtenant Final Order has been transmitted to DOAH, and included in the DOAH database
3) an appurtenant Final Order has been included in the DOAH Database in PDF format only that is not searchable.
Legally, a DOAH Recommended Order alone is a nullity.
This disturbing result means that DOAH ALJs conduct their own inhouse legal research oblivious to the agency FINAL ORDERS in many instances. This is not what the legislature has mandated:
Section 120.53 (1) (a-e) & (2) (a-d) provides:
(1) In addition to maintaining records contained in s. 119.021(3), each agency shall also electronically transmit a certified text-searchable copy of each agency Final Order listed in subsection (2) rendered on or after July 1, 2015, to a centralized electronic database of agency FINAL ORDERS maintained by the division. The database must allow users to research and retrieve the full texts of agency FINAL ORDERS by:
(a) The name of the agency that issued the Final Order.
(b) The date the Final Order was issued.
(c) The type of Final Order.
(d) The subject of the Final Order.
(e) Terms contained in the text of the Final Order.
(2) The agency FINAL ORDERS that must be electronically transmitted to the centralized electronic database include:
(a) Each Final Order resulting from a proceeding under s. 120.57 or s. 120.573.
(b) Each Final Order rendered pursuant to s. 120.57(4) which contains a statement of agency policy that may be the basis of future agency decisions or that may otherwise contain a statement of precedential value.
(c) Each declaratory statement issued by an agency.
(d) Each Final Order resulting from a proceeding under s. 120.56 or s. 120.574.
The consequences of these omissions are not trivial.
Section 120.68 (7) (c) & (e) (3) provide:
(7) The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that:
(c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure;
(e) The agency’s exercise of discretion was:
3. Inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency;
The Florida Administrative Procedures Act (Section 120, Fla. Stat.) mandates stare decisis. Yet, DOAH ALJs, and Practitioners are left with a redacted, incomplete and somewhat unsearchable DOAH database with which to protect the due proceeds rights of our citizens, and their clients.
Florida is committed to providing due process, both within the judicial branch through trial and appellate courts, and within the executive and legislative branches, with administrative hearings. DOAH ALJs are united under one organization, and in one place. The Division of Administrative Hearings (DOAH), since its creation, has been an impartial, efficient, and professional organization devoted to serving the people of Florida.
Since DOAH conducts so many administrative hearings, it produces a vast amount of FINAL ORDERS, Recommended Orders, and other documents. Though most of these are theoretically available to the public, they are often difficult or impossible to search, which makes it’s website and database of limited use to the legal researchers. FALR, a private entity outside of DOAH, brings administrative caselaw to anyone EQUALLY by providing easy, keyword-searchable access to all DOAH Orders, and much more.
Go to our home page at www.falr.com and learn more about us.