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

In Florida, agencies have to follow certain rules when making new policies. If they don’t follow the rules, someone who is affected by the new policy can challenge it. But first, they have to prove that the new policy is not following the right rules. An unadopted rule is a statement from a government agency that acts like a rule, but hasn’t been officially approved. In Florida, courts have said that a statement is a rule if it makes people do things, gives people rights, or affects people like a law would. If a statement is vague or only applies to specific situations, it might not be considered a rule. When there’s a disagreement about whether a statement is a rule or not, there’s a way to resolve the issue called an unadopted rule challenge. If someone is affected by a rule that a government agency hasn’t officially approved, they can challenge it. They need to submit a petition describing the rule and explaining why they think it’s not approved. If a judge agrees, the agency has to stop using the rule. It’s also possible to get money for legal costs if the challenge is successful. Some recent cases have shown how these challenges work and what can happen if a rule is found to be unapproved. In three different cases, the court had to decide if certain statements made by government agencies were unadopted rules. They looked at whether the statements interpreted existing laws or policies, and whether they applied to a lot of people or situations. In two cases, they found that the statements were unadopted rules because they interpreted the law and applied to a lot of people. In the other case, they found that the statement was not an unadopted rule because it only applied to a specific group of people. In both the Williams and Ocala Herlong cases, the courts easily determined that the interpretation of current law was not a difficult issue. The statements in question were found to be interpretations of existing laws based on specific legal references. This meant that the courts were able to easily dispose of the interpretation issue. In Florida, whether a rule applies to everyone or just a specific group can affect its legality. Courts have found that rules can be generally applicable if they apply to a large group of people or activities. But sometimes, rules are not considered generally applicable if they only apply to a small group in a specific area or for a specific project. The court considers the size of the affected group, the geographic area, and the timing of the rule in making this decision. All administrative law attorneys in Florida should be able to accurately identify agency statements as rules. This helps agency attorneys defend against lawsuits and private attorneys challenge unfavorable agency policies. It also ensures that agencies comply with the law, ultimately benefiting the citizens of Florida.

Source: https://www.floridabar.org/the-florida-bar-journal/rule-or-no-rule-an-examination-of-recent-unadopted-rule-challenge-decisions/