DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, APPELLANT,
v.
FLORIDA POLICE BENEVOLENT ASSOCIATION AND MARCUS A. MCGOWAN, APPELLEES
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The Florida Department of Highway Safety and Motor Vehicles challenged a hearing officer's determination that two unpromulgated general orders governing physical fitness standards and disciplinary guidelines for highway patrolmen were invalid rules requiring formal rulemaking procedures. The court reversed, holding that the general orders qualified as exempt internal management memoranda and distinguishing the case from prior precedent.
The court held that general orders 40 and 43 qualify for the internal management memoranda exemption from rulemaking requirements and are therefore valid. The court distinguished the case from Stevens because these general orders were effective only as guidelines subject to enforcing officer discretion, not as self-executing rules creating rights or requiring compliance by their own effect.
[1] General orders prescribing standards of physical fitness and guidelines for assessing discipline are not illicit rules subject to formal rulemaking if they are internal m…
[2] Internal management memoranda are exempt from formal rulemaking requirements when they serve as guidelines rather than self-executing rules intended to create rights or r…
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“The 'bumping' guidelines that Stevens characterized as rules were virtually self-executing, intended 'by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.'”
Establishes the standard for distinguishing self-executing rules from discretionary guidelines; sets forth what constitutes an invalid unpromulgated rule.
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Join FLexlaw to unlock all legal intelligenceThe Highway Patrol issued general order 40 prescribing physical fitness standards for patrolmen and general order 43 providing guidelines for supervis…
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ROBERT P. SMITH, Jr., Chief Judge.
Citing State Dept. of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977), a DOAH hearing officer in this Section 120.56 rule challenge proceeding held that the Highway Patrol’s general order 40, prescribing standards of physical fitness for patrolmen, and general order 43, prescribing guidelines for supervisors in assessing discipline for deficiencies in patrolmen’s conduct, are illicit rules and hence invalid, because they were not subjected to formal rulemaking under Section 120.54. 1 Fla. Admin.L.Repts. A-12 (1979). In holding that these general orders were not exempt as “internal management memoranda” from the rulemaking requirement, Section 120.52(14)(a), the hearing officer lamented the apparent application of Stevens to this case, saying:
The instant case demonstrates how Rule challenges present serious problems to the agencies in establishing and carrying out policies applicable only to agency employees which are not formally promulgated as rules. Once the agency attempts to enforce such a policy on employees who fail or refuse to comply, the policy begins to affect private interests.
We think the general orders in the present case qualify for the “internal management memoranda” exemption from rule-making and that this case, considered in the light of judicial decisions rendered after the hearing officer ruled in this case, can and should be distinguished from Stevens. The “bumping” guidelines that Stevens characterized as rules were virtually self-executing, intended “by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 581 (Fla. 1st DCA 1977). General orders 40 and 43 on the other hand, were effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer. In this case, for example, the contestant’s severe overweight condition brought on a series of disciplinary responses, of increasing severity, and the operable rule which by Stevens standards impinged the contestant’s arguably private interests was not the unpromulgated weight standards, but rather the published rule against insubordination, Fla.Admin.Code R. 22A-7.-10(7)(a), (b).
In marginal rule challenges such as this, see also Hill v. Leon County Board of Public Instruction, 351 So. 2d 732 (Fla. 1st DCA 1977), cert. den., 359 So. 2d 1215 (Fla.1978), the public interest is now better served by permitting other incentives for rulemaking to operate 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 Reg., 393 So. 2d 1177 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Reg., 397 So. 2d 696 (Fla. 1st DCA 1981); Cenac v. Florida State Board of Accountancy, 399 So. 2d 1013 (Fla. 1st DCA 1981).
REVERSED.
MILLS and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dep't OF Revenue v. Novoa, 745 So. 2d 378 (Fla. 1st DCA 1999)…can be explained on the basis that the disciplinary guidelines at issue there were intended only to afford guidance and not to have the force and effect of law. See Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Ass’n, 400 So. 2d 1302, 1303 (Fla. 1st DCA 1981). See also Webster v. South Fla. Water Management Dist., 367 So. 2d 734, 734 (Fla. 4th DCA 1979) (holding that the internal management memorandum exception did not apply to agency policy implicated in an employee’s dismissal…
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Amos v. Dep't of Health & Rehabilitative Servs., 444 So. 2d 43 (Fla. 1st DCA 1983)…ment of Banking & Finance, 346 So. 2d 569 (Fla. 1st DCA 1977); Department of Health and Rehabilitative Services v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977); Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So. 2d 1302 (Fla. 1st DCA 1981); Florida State University v. Dann, 400 So. 2d 1304 (Fla. 1st DCA 1981). . Florida Cities Water Co. v. Public Service Commission, 384 So. 2d 1280, 1281 (Fla.1980); An-heuser-Busch, Inc. v. Department of Business Regulation, 393 S…
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Dep't of Hwy. Safety & Motor Vehicles v. Schluter, 705 So. 2d 81 (Fla. 1st DCA 1997)…have the force and effect of law and falling within the definition set out in section 120.52(15), Florida Statutes (Supp.1996). The general orders at issue in Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So. 2d 1302 (Fla. 1st DCA 1981) came much closer to agency statements falling within the definition of “rule.” But the general orders were held not to qualify as rules because they “were effective in themselves only as guidelines, subject in application to the…1 / 4
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDONALD v. Dep't OF Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977)
- 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)
- State v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977)
- 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)