Legal remedies that you may not be aware of are available to you to help solve some problems that may arise in your professional life. This article describes two remedies that you don’t need a lawyer to petition for.
Petition for Declaratory Statement
Sometimes licensees find themselves in the position of asking, "Can I, as a Florida-licensee, do X?" or "If I do Y, do I run the risk of disciplinary action by the state?" Rather than simply run the risk and incur the attendant anxiety, you can file a petition for declaratory statement with the Board ahead of time. Petitions for declaratory statement are governed by Section 120.565, F.S., and by Chapter 28-105, Florida Administrative Code. You should also read the Florida Statutes and the Florida Administrative Code chapters governing your profession (these are the laws that govern all Florida-licensed licensees), and identify the specific statute(s) and/or rule(s) that you believe may cause you legal trouble if you pursue your planned course of action.
Any substantially affected person (i.e. a licensee or applicant) may seek a declaratory statement regarding an opinion of a board, or the department when there is no board, as to the applicability of a statutory provision, or of any rule or order of the board, or department when there is no board, as it applies to the licensees particular set of circumstances, pursuant to section 120.565, Florida Statutes. The petition seeking a declaratory statement must state with particularity the licensees set of circumstances and must specify the statutory provision, rule, or order that the licensee believes may apply to the set of circumstances.
A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the board, or department when there is no board, has authority, pursuant to rule 28-105.001, Florida Administrative Code. A petition for declaratory statement may be used only to resolve questions or doubts as to how the statutes, rule, or order may apply to the petitioner's particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person or for obtaining a policy statement of general applicability. A petition for declaratory statement must describe the potential impact of the statutes, rules, or orders upon the petitioner's interests.
Pursuant to Chapter 28-105, Florida Administrative Code, a petition seeking a declaratory statement shall be filed with the Department of Health's Agency Clerk's Office at 4052 Bald Cypress Way, Bin #A02, Tallahassee, Florida 32399-1703. The petition must contain the following information:
- A caption that reads, "Petition for Declaratory Statement Before the Board of ______ (stating the name of the appropriate board or department when there is no board.)
- The name, address, telephone number, and facsimile number of the petitioner (licensee).
- The name, address, telephone number, and facsimile number of the petitioner's attorney or legal representative, if any.
- The statutory provisions, rules, or orders on which the declaratory statement is sought.
- A description of how the statutes, rules, or orders substantially affect the petitioner in the petitioner's particular set of circumstances.
- The signature of the petitioner or of the petitioner's attorney or qualified representative.
- The date.
Pursuant to Chapter 28-105, Florida Administrative Code, the board, or the department when there is no board, may hold a hearing to consider the petition for declaratory statement. If a hearing is held, it shall be in accordance with sections Section 120.565 and 120.57, Florida Statutes. Within 90 days of the filing of the petition with the Department of Health, the board, or department when there is no board, shall render a final order denying the petition or granting the declaratory statement.
Petition for Variance or Waiver
It may be that one of the rules of your profession’s Florida Administrative Code, will cause you to experience a substantial hardship or will violate principles of fairness if it is applied to you. In such a situation, you can file a petition for variance from, or waiver of, the rule. This type of petition is governed by Section 120.542, Florida Statutes, and Chapter 28-104, Florida Administrative Code.
The statute provides that variances and waivers shall be granted when the person subject to the rule demonstrates that he or she has achieved the purpose of the underlying statute by other means, and when application of a rule would create a substantial hardship or would violate principles of fairness. The statute defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. "Principles of fairness" are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.
As a Florida-licensed licensee, you may file a petition with the Board (with a copy to the Joint Administrative Procedures Committee of the Florida Legislature), requesting a variance or waiver from one of the rules in your profession’s Florida Administrative Code. Your petition must specify the rule from which a variance or waiver is requested, the type of action requested, the specific facts that would justify a waiver or variance, and the reason why the variance or the waiver requested would serve the purposes of the underlying statute. Be sure to check Chapter 28-104, Florida Administrative Code for specific requirements regarding the petition. When the Board receives a proper petition, it will consider the petition at the next available meeting, and you will receive a written answer.
Please note that the Board cannot waive or vary from a statute, only from a rule of the Administrative Code (i.e., those requirements that begin with 64B9-).
You are certainly free to hire an attorney to draft a petition for declaratory statement or a petition for variance or waiver, but you can also do it yourself by following the requirements of the statutes and rules listed here.
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