Rule or No Rule? An Examination of Recent Unadopted Rule Challenge Decisions.

• Author: Pitt, Gregory L., Jr.
• Position: Administrative Law

Florida law requires that each agency statement defined as a rule be adopted via the administrative rulemaking process. (1) When an agency fails to adhere to this requirement, it faces the possibility of an unadopted rule challenge. Under F.S. [section]120.56(4), any person substantially affected by an agency statement that is an unadopted rule may seek an administrative determination that the statement violates the rulemaking requirements of the Administrative Procedure Act. (2) However, in order to determine whether such a violation has occurred, it is first necessary to determine whether the statement in question is an unadopted rule.

What Is an Unadopted Rule?

An unadopted rule is an agency statement that meets the definition of the term rule but hasn't been adopted in accordance with the requirements of the Administrative Procedure Act. (3) Under F.S. [section]120.52(16), a rule is an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency...." Also included in this definition are "the amendment or repeal of a rule" and "any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." (4) Excluded from this definition are certain types of internal memoranda, contractual provisions, and financial information. (5)

Florida's district courts of appeal have provided guidance on this topic. In Jenkins v. State, 855 So. 2d 1219, 1225 (Fla. 1st DCA 2003), the court indicated that in order to determine whether an agency statement is a rule, one must consider its effect. Specifically, the court held that "[a]n agency statement or policy is a rule if its effect requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law." (6) In State Board of Administration v. Huberty, 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010) (quoting St. Francis Hospital, Inc. v. Department of Health & Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989)), the court expounded upon F.S. [section]120.52 (16), stating:

[A]n agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

In addressing the statutory requirement that administrative rules be generally applicable, the court in Department of Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d 81, 82 (Fla. 1st DCA 1997), held that a statement is not generally applicable if its application is subject to the discretion of the agency. Similarly, in Agency for Health Care Administration v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008), the court found general applicability lacking in statements that are applied solely on a case-by-case basis. In addition, Florida's district courts have indicated that a statement need not apply to every person or activity within an agency's jurisdiction in order to be considered generally applicable. (7)

Given these statutory and judicial guidelines, one might expect the identification of administrative rules to be a simple exercise. However, as is the case with most legal issues, the gray areas of rule identification tend to outnumber the black and white, and it is for this reason that the Florida Legislature has established a method by which disputes in this area may be resolved--the unadopted rule challenge.

The Unadopted Rule Challenge Process

Any person substantially affected by an agency statement alleged to be an unadopted rule may challenge its validity by filing a petition with the Division of Administrative Hearings (DOAH). (8) The petition must include, at a minimum, a description of the challenged statement and facts sufficient to demonstrate that the...