Lawsuits against Regulators Just Became More Fair in Florida

Small Business Owners,

Did you know that until now, under Florida law, if you litigated against a regulatory agency because they revoked your license, denied your application, adopted a rule that didn’t seem to make sense, or imposed a fine on you, the government had a built-in advantage in court? In most cases, the judge was required to uphold the agency’s decision as long as it wasn’t irrational or based upon a mistake. However, beginning in January 2019, that bias in favor of the regulatory agency goes away in Florida. Some voters may not have noticed it, but when we voted for Amendment 6, Marsy’s Law for crime victim rights, we also voted to end the discretion that regulatory agencies had to interpret statutes virtually any way they wanted to. Now, under the Constitutional Amendment, if the position taken by the regulated company makes more sense than the position taken by the government, the judge can now rule in favor of the regulated party. What a novel idea – regulation that makes sense!

(For those interested in the technical reference, Florida Interexchange Carriers Association v. Clark, 678 So.2d 1267 (Fla. 1996) has been superseded by a constitutional amendment to be added to FL Cons Art. XI, Sec. 5(e). For lawsuits against federal agencies, the federal counterpart to the agency deference doctrine, Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984) still applies although some Supreme Court justices seem interested in rethinking the Chevron case as well.)