The scarecrow in McDonald's Farm: a fairy tale about administrative law.

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Florida

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The scarecrow in McDonald's Farm: a fairy tale about administrative law.

Editor's Note: A state agency that relies on policy to affect the substantial interests of a person must provide adequate notice of the underlying policy in order for agency action to be enforceable. The requirement for adequate notice in Ch. 120, the Administrative Procedure Act, or APA, initially required all agency policy to be promulgated as a rule in accordance with the rulemaking provisions prescribed in [sections] 120.54. Courts later determined that the requirement to promulgate agency policy applied only to policy which satisfied the statutory definition of a rule in [sections] 120.52(15). Policy excluded from the statutory definition was nonrule policy and was not required to be promulgated as a rule.

Judge Daniel Manry sees a significant inconsistency in the way nonrule policy is defined legislatively and judicially. In Judge Manry's view, the legislature divides the whole of agency policy into two parts. Agency policy is either policy-by-rule or nonrule policy. In relevant part, the legislative definition of a rule in [sections] 120.52(15) defines policy-by-rule as that part of agency policy which satisfies the requirement of general applicability. The remainder of agency policy, that part of agency policy which is not generally applicable, is nonrule policy.

Judg...

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