DEPARTMENT OF CORRECTIONS, APPELLANT,
v.
MCCAIN SALES OF FLORIDA, INC., AND ANNAT, INC., A FLORIDA CORPORATION, D/B/A MUNICIPAL SUPPLY AND SIGN COMPANY, APPELLEES
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The Department of Corrections appeals a hearing officer's decision that invalidated its metal sign manufacturing program for inmates as an unlawful rule requiring formal rulemaking under Florida's Administrative Procedure Act. The court reversed, holding that an agency program, even if it reflects policy, is not itself a statement of policy requiring codification in administrative rules.
The court reversed the hearing officer's decision, holding that an agency program, while it reflects agency policy, is not itself a statement of policy requiring formal rulemaking. Agencies may permissibly withhold their policies from rulemaking, though they assume considerable burdens of proof in subsequent administrative proceedings challenging their actions.
[1] An agency program, while reflecting policy, is not itself a statement of policy that must be subjected to formal rulemaking processes.
[2] Agency actions, such as inviting bids, can demonstrate the adoption of a program even without a formal written statement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An agency program reflects its policy, to be sure, but a program as such is not a statement of policy, and no statute requires all agency programs to be described in Florida Administrative Code.”
Establishes the core holding distinguishing agency programs from statements of policy requiring rulemaking
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Join FLexlaw to unlock all legal intelligenceThe Department of Corrections implemented a program for inmates to manufacture metal signs. The hearing officer found that while the Department had no…
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ROBERT P. SMITH, Jr., Chief Judge.
The Department of Corrections appeals from a DO AH hearing officer’s order invalidating as an illicit rule, because it was not subjected to formal rulemaking processes under Section 120.54, the Department’s program for the manufacture of metal signs by inmates of the correctional system. Section 945.06, Florida Statutes (1976 Supp.). The hearing officer found:
Here the Department has, apparently, not set forth its decision to engage in a metal sign manufacturing program in a formal written statement. Certainly no such written statement was offered into evidence. However, it is patently clear from the evidence that the Department has expressed in a non-verbal way its decision to engage in the subject program. The actions of the Department culminating in the invitation for bids clearly express the adoption by -the Department of a metal sign manufacturing program. It is therefore concluded that the agency statement proved by the Petitioners is the decision by the Department to adopt a metal sign manufacturing program, as one of its correctional work programs under Section 945.06, Florida Statutes.
The hearing officer went on to conclude that the “statement” so described as one of general applicability, implementing, interpreting or prescribing law or policy, thus constituting an illicit rule.
In this, and in comparing the case to P.A.M. News Corp. v. Hardin, 440 F. 2d 255 (D.C. Cir. 1971), applying the federal APA, we think the hearing officer erred. Small definitional differences between the Florida and federal acts, see Hardin at 258, fn. 4, prevent too great a reliance on federal decisions. An agency program reflects its policy, to be sure, but a program as such is not a statement of policy, and no statute requires all agency programs to be described in Florida Administrative Code. See also Hill v. Leon County School Board of Public Instruction, 351 So. 2d 732 (Fla. 1st DCA 1977), cert. den., 359 So. 2d 1215 (Fla. 1978).
Moreover, as has been shown by Florida decisions since the hearing officer ruled in this matter — this case and related cases decided this day have been here a lamentably long time, at fault of no one but the writer — an agency that permissibly withholds its policy from rulemaking assumes considerable burdens of proof and exposition in Section 120.57 proceedings. Florida Cities Water Co. v. Florida Public Service Comm’n, 384 So. 2d 1280 (Fla. 1980); Rice v. Dept. of Health and Rehab. Services, 386 So. 2d 844 (Fla. 1st DCA 1980); Anheuser-Busch, Inc. v. Dept. of Business Req., 393 So. 2d 1177 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Req., 397 So. 2d 696 (Fla. 1st DCA 1981); Cenac v. Florida State Board of Accountancy, 399 So. 2d 1013 (Fla. 1st DCA 1981).
Now more than ever it is appropriate to allow these incentives for rulemaking to work in other proceedings rather than to subject marginal cases to the difficult semantic debate that our early decisions encouraged in rule-challenge proceedings against nonrule policy.
REVERSED.
MILLS and ERVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dep't of Hwy. Safety & Motor Vehicles v. Schluter, 705 So. 2d 81 (Fla. 1st DCA 1997)…nual.4 But the last three— [*88] the policies the majority deems rules — have no written basis whatsoever. With rare exception,5 [m]ére “unwritten policy” cannot amount to an illicit rule. Department of Corrections v. McCain Sales of Florida, Inc., 400 So. 2d 1301 (Fla. 1st DCA 1981)(“a program as such is not a statement of policy” at 1302). A rule is a statement “of general applicability ... applied and ... intended to be applied with the force of a rule of law.” State, Department of Administration v. Steven…1 / 3
Authorities Cited
- Rice v. Dep't of Health & Rehabilitative Servs., 386 So. 2d 844 (Fla. 1st DCA 1980)
- Fla. Cities Water Co. v. Fla. Pub. Serv. Comm'n, 384 So. 2d 1280 (Fla. 1980)
- Anheuser-Busch, Inc. v. Dep't OF Bus. Reg., 393 So. 2d 1177 (Fla. 1st DCA 1981)
- ABC Liquors v. Dep't of Bus. Reg., 397 So. 2d 696 (Fla. 1st DCA 1981)
- Hill v. Sch. Bd. OF Leon Cnty., 351 So. 2d 732 (Fla. 1st DCA 1977)
- Cenac v. Fla. State Bd. OF Accountancy, 399 So. 2d 1013 (Fla. 1st DCA 1981)
- P. A. M. News Corp. v. Hardin, 440 F.2d 255 (D.C. Cir. 1971)