Declaratory Statement for Florida Contractors
By Christopher M. Cobb January 22, 2021 Posted in Construction Law Share
Many Florida contractors and license holders find it can be difficult to read and interpret statutes that govern their license. This post will cover some specific information regarding petitions for declaratory statements that license holders and his/her attorney should know before they appear in front of the CILB.
A declaratory statement is the sole means for obtaining a binding interpretation or opinion from the CILB concerning the applicability of statutory provisions, rules or orders over which the CILB has authority (Chapters 455 and 489, Part I, Florida Statutes, and Chapter 61G4, Florida Administrative Code). A petition for a declaratory statement may only be used to resolve questions or doubts as to how the statutes, rules or orders 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 from the CILB.
Section 120.565, Florida Statutes, and 28.105, Florida Administrative Code, set forth the requirements for filing a petition for declaratory statement with the CILB. A petition seeking a declaratory statement needs to be filed with the clerk of the agency and (1) contain a caption that says, “Petition for Declaratory Statement Before (Name of Agency)”; (2) the name address and any email of the petitioner; (3) the name address and email of the petitioner’s attorney; (4) the statutory provision at issue; (5) a description of how the statute, rule or order may substantially affect the petitioner; (6) the signature of the petitioner or his attorney; and, (7) the date.
The first step in the review of a declaratory statement is a finding from the CILB that the party making the request has “standing” to bring the petition. The petitioner must demonstrate to the CILB that they are a “substantially affected person”. To determine if the petitioner is a substantially affected person, the petitioner must state with particularity the exact set of circumstances. A petitioner’s failure to be particular and/or give all of the facts will likely lead to the CILB’s refusal to answer as vague or a straight out denial. If standing exists, a motion from a board member will be made for the finding of standing and a vote will occur. Then the CILB will begin an open discussion concerning the issues presented in the petition. The petitioner should always be present during the consideration because often times the CILB members will have specific questions regarding the facts. If the petitioner is not there to address the question, then there may not be sufficient information for the CILB to render a decision.
The CILB will not use a petition for declaratory statement to answer a question that is the subject of or will become the subject of pending litigation, or for conduct that has already occurred. Questions regarding statutory interpretation are left to the court system in those circumstances and the CILB will only address petitions with a forward looking view. The CILB needs to issue the declaratory statement or deny the petition within 90 days after its filing with the DBPR. Once a decision on the petition is issued, the CILB will issue a Notice of Disposition to the petitioner advising of the CILB’s decision on the petition. The DBPR maintains on its website a list of previously issued declaratory statements dating back to 1994, indexed by year and by which license type was affected by the statement. You should note that some of the statements have since been affected by new statute amendments and rule changes so refer to the Statute/Rule cited to verify the information is still applicable. Petitions which have been denied by the Board are not included on the website.
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