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 rule 28-105.002, 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 …" 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 rule 28-105.003, 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 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.