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An end to agency deference Last November, Florida voters approved a slate of amendments to the state’s constitution.  Included among those approved was Amendment Six.  It declared state courts, including administrative courts, “may not defer to administrative agency’s interpretation” of a statute or rule.  Instead, judges and hearing officers must interpret the statute or rule de novo.

On March 19, 2019, the state court of appeals responsible for most appeals of administrative litigation put the new constitutional language into effect, in Kanter Real Estate LLC v. Department of Environmental Protection.  The case involved an order from the Florida Department of Environmental Protection (“FDEP”).  FDEP’s order attempted to overturn an administrative law judge’s decision that would have allowed a permit for a controversial oil well.  In Kanter Real Estate LLC, the First District Court of Appeal squarely rejected FDEP’s legal interpretation of the relevant statute.

Most noteworthy was the very literal application of the constitution’s text.  The court did not allow itself for example to be “informed by” the agency’s view, nor any other euphemism for deference.  Instead, the court rejected the agency’s attempt to balance multiple complex environmental factors.  In past cases, such balancing of environmental interests made by an agency would have been difficult to overcome because of the expertise about environmental matters accorded under the law to the agency.  Florida’s Administrative Procedures Act provides that when reviewing recommended orders from administrative law judges, agencies may reject or modify the conclusions of law over which the agency has substantive jurisdiction and interpretation of administrative rules over which the agency has substantive jurisdiction. In the past, as the court noted, it “afforded considerable deference to agency interpretations of statutes and rules, affirming such interpretations unless clearly erroneous.”  Going forward, the court made clear, this standard would no longer apply.  The other noteworthy aspect of the opinion is that it called into question the precedential value of any previous cases in which a court accorded deference to an agency.

The constitutional amendment, and its initial interpretation by the courts, affects more than environmental agencies such as FDEP and the state’s water management districts.  The end of deference to administrative interpretations will also heavily impact Florida’s health care agencies, like the Department of Health, and the Public Service Commission, which oversees the regulation of electric, gas, and private water utilities across the state.  For entities and individuals finding themselves in litigation against state agencies, the new constitutional amendment and Kanter Real Estate LLC helps level the playing field.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, Winter Park, and its headquarters in West Palm Beach. With nearly 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.


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