Constitutional Rulemaking: What Happens When the APA Doesn't Apply?

• Author: Hayes, Jonathan
• Position: Florida's Administrative Procedure Act

Recent changes to the Florida Constitution, in conjunction with a 2009 change to Florida's Administrative Procedure Act (APA), have raised the question of whether agencies given constitutional directives to engage in rulemaking can make rules outside the authority of the APA, and if so, what procedures might be available to parties wishing to challenge such rules.

The Florida Constitution provides authority for several entities to engage in rulemaking, though recently the constitutional amendment dealing with medical marijuana provided that the Department of Health (DOH) "shall issue" particular rules, using language that might represent an unprecedented level of agency authority in the Florida Constitution. Ordinarily when an agency makes rules, the APA puts forth detailed requirements for rulemaking (1) and an administrative procedure for challenging both proposed rules and existing agency rules. (2) However, in 2009, the APA was amended to state that the APA applies only when an agency acts pursuant to powers "other than those derived from the constitution." (3) If DOH "shall issue" regulations pursuant to powers DOH derives from the constitution, the APA arguably would not apply to those regulations. (4)

The medical marijuana amendment may represent the first time a legislatively-created agency was granted explicit rulemaking authority in the constitution without requiring any action by the legislature. While there may be more than one reasonable interpretation of the language of the medical marijuana constitutional amendment, DOH has interpreted the constitution such that it derives significant authority to make rules from the constitution, and DOH has promulgated rules based on this interpretation.

For the first time, then, there is a significant question regarding what procedures apply regarding an agency's rules promulgated solely under the agency's constitutional authority, rather than under statutory authority. DOH has promulgated its own rules for making rules outside the APA, and has promulgated rules pursuant to its own standards.

Ordinarily, rule challenges are brought before the Division of Administrative Hearings (DOAH). DOAH is also a creature of statute, and if the agency action challenged does not fall within the statutory definition of "agency" action under the APA, DOAH presumably lacks jurisdiction to hear such a challenge. (5) If DOH acts solely pursuant to powers it "derived from the constitution" it appears not to fall within the definition of "agency" regarding those acts. Because the Department of Health has promulgated rules that may have been based only on the Department of Health's constitutional authority, several questions have been raised at the Division of Administrative Hearings, including whether DOAH has jurisdiction to hear a challenge to DOH's rules.

While the questions surrounding DOH's rulemaking authority are interesting, they raise a host of other questions that may arise in a variety of contexts if an agency or entity other than DOH makes rules pursuant to constitutional authority. After all, DOH is not the only entity with constitutional rulemaking authority. (6) This article explores the question of whether an agency can make rules outside the APA, and if so, what procedural avenues are available to challenge an agency's rulemaking based on constitutional authority, using DOH's newfound constitutional authority as an example.

Amendment 2 Gave the Department of Health Significant Rulemaking Authority

After failing to pass a medical marijuana amendment in 2014, Florida voters approved Amendment 2 in 2016, which was intended to expand access to medical marijuana beyond the framework created by the Florida Legislature. (7) Amendment 2 became Fla. Const. art. X, [section]29 (2017), which provides that the Department of Health (8) "shall issue reasonable regulations necessary for the implementation and enforcement" of the amendment. (9) Specifically, DOH was provided six months from the date the amendment became effective (10) to create certain enumerated regulations. (11) The deadline to create certain rules to implement the medical marijuana amendment was July 3, 2017.

Among the rules DOH "shall issue" under Amendment 2 are procedures for the registration of new medical marijuana dispensaries, referred to in the constitution as Medical Marijuana Treatment Centers (MMTCs). (12) DOH is required to promulgate rules "that include procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety" of MMTCs. (13) The stakes for these regulations are high; competition for licenses is intense; and there are a lot of moving parts regarding the issuance of new licenses. When the legislature allowed registration of dispensaries under much more limited circumstances, the applications were, in many cases, well over 1,000 pages. (14) Now that the number of medical conditions that qualify to receive medical marijuana is expanded, demand for and competition over these licenses is even more intense.

Against this backdrop, in May 2017, DOH published, and has since adopted, its own rules for adopting rules outside the APA's procedures, (15) which the department refers to as its constitutional regulation procedure. (16) DOH's published notice cites only the Florida Constitution as the authority for adopting a regulation development procedure. (17) In the background section...