Florida’s Unadopted Rules: Unveiling the Legal Maze and Empowering Change

Are you or your business affected by an unadopted rule? 

An unadopted rule by a department or agency of Florida is a…

“statement of general applicability that implements, interprets or prescribes law or policy or describes the procedure or practice requirements of the agency but has not gone through the required rule-making process.” 

These unadopted rules or rulemaking often impose requirements or require additional information not required by statute or rule. There are some exceptions to the unadopted rule such as internal memoranda or legal memoranda or opinions issued to the agency by the state Attorney General.

It is often difficult to establish that an agency statement is an unadopted rule. However, attorneys with experience in administrative law, such as those at Howell, Buchan & Strong, are equipped to help you make this determination.

What are Unadopted Rules?

The main thing to look for is whether an agency statement (a memo, a written “policy” procedure, or other written document) requires you or your business to do something that is not found in a rule or statute. The agency statement should apply to you and other licensees just like you (“general applicability”). Agencies often claim that such statements are merely guidance documents or memos explaining the requirement under the statute or rule.  The unadopted rule will require the licensee or prospective licensee to do something that is not found in the statute or rule.  It will impose an additional requirement or request information that is not required by rule or statute.  

Challenging Unadopted Rules

Under Chapter 120, Florida Statutes proposed rules, existing rules, and unadopted rules may be challenged through an evidentiary proceeding at the Division of Administrative Hearings (“DOAH”). Regarding proposed rules, substantially affected parties must file a petition challenging the proposed rule within the particular timeframe established by statute. Should the party fail to timely challenge the proposed rule, the rule becomes effective, and the party may only challenge the existing rule, where the burden of proof is more favorable to the agency.

An experienced attorney will file a petition challenging the unadopted rule. An agency can defend against these petitions and contest or challenge an unadopted rule (The Florida Bar Journal offers some good, recent examples of unadopted rule challenge decisions). 

An agency can even start to promulgate (the act of making a law or decree known, or formally putting it into effect, by public declaration) a rule during the proceeding challenging the unadopted rule. An administrative law judge can issue a stay or abeyance while the agency attempts to promulgate the rule. However, the rule-making process is complex and must be processed through a third “party” or agency.

If you suspect or wonder if you are being given additional requirements or obligations in pursuit of your license, when renewing your license, or when an administrative complaint has been filed against your license, contact the legal team of Howell, Buchan & Strong for a free, no-obligation consultation.