agency rule in Florida

2000"A circuit court should not, as a matter of policy, entertain an action alleging the facial unconstitutionality of an agency rule because an adequate remedy remains available in the administrative process." See Key Haven Associated Enterprises v. Board of Trustees of Internal Improvement Trust Fund, 427 So.2d 153, 157-58 (Fla.1982); Florida Marine Fisheries v. Pringle, 736 So.2d 17, 23 (Fla. 1st DCA 1999). *981 Resolution of this appeal turns on the narrow question whether the supreme court's rulings in Kuhnlein and Nemeth should be construed as limiting application of the direct-file exceptio

1999See Key Haven Associated Enterprises, 427 So.2d at 157-58 , where we said: When the facial unconstitutionality of an agency rule is the focus of an aggrieved party's constitutional claim, the administrative proceedings must be exhausted and the claim presented to the district court.

2002Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985) (quoting Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir.1973) (emphasis added).) Thus, where the doctrine is applicable, the court is to suspend consideration of the issues until these have been presented to the appropriate administrative agency.

1985It does not defeat the court's jurisdiction over the case, but coordinates the work of the court and the agency by permitting the agency to rule first and giving the court the benefit of the agency's views ... 475 F.2d at 1091-1092 .

2002Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985) (quoting Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir.1973) (emphasis added).) Thus, where the doctrine is applicable, the court is to suspend consideration of the issues until these have been presented to the appropriate administrative agency.

2001Corp., 478 So.2d 368, 370 (Fla. 2d DCA 1985) (quoting Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091-92 (5th Cir. 1973) (emphasis added).) Thus, where the doctrine is applicable, the court is to suspend consideration of the issues until these have been presented to the appropriate administrative agency.

1989Grove Isle, Ltd. v. State Department of Environmental Regulation, 454 So.2d 571, 573, 575 (Fla. 1st DCA 1984).

1989Grove Isle, Ltd. v. State Department of Environmental Regulation, 454 So.2d 571, 573, 575 (Fla. 1st DCA 1984).

1985Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979); Dept. of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984).

1983Cf. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978) (defining "arbitrary and capricious" in the context of legislative authority for an agency rule).

1995"The agency rule making function involves the exercise of agency discretion and this Court will not substitute its judgment for that of the agency on an issue of discretion." Citizens of Florida v. Mayo, 357 So.2d 731, 733 (Fla. 1978).

1983Section 120.68(12), Florida Statutes (Supp. 1978); Citizens of Florida v. Mayo, 357 So.2d 731 (Fla. 1978).

2002A. In Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351, 353-54 (Fla.1982), the court held that trade or professional associations have standing in certain circumstances to challenge, pursuant to section 120.56(1), Florida Statutes, an agency rule on behalf of their members: To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule.

1985In that case the Florida Supreme Court held that “a trade association does have standing under section 120.56(1) to challenge the validity of an agency rule on behalf of its members when that association fairly represents members who have been substantially affected by the rule.” 412 So.2d at 352 .

2017This court has held that “at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury.” Smart v. Monge, 667 So.2d 957, 959 (Fla. 2d DCA 1996).

1997We observed that, "at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury." 667 So.2d at 959 .

2002See, e.g., Rice v. Dep't of Health & Rehabilitative Servs., 386 So.2d 844, 846 (Fla. 1st DCA 1980) (holding that parents seeking to challenge the department's rule which required the child of a married couple to be registered under the father's surname must first exhaust administrative procedures before filing an action in court).

1982For example, in Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980), an aggrieved party challenged, on equal protection, due process, and first amendment grounds, the agency rule implementing the statute requiring registration of the birth and name of a child.

1991Auth. v. Tampa Heart Inst., 472 So.2d 748 (Fla. 2d DCA 1985) (holding that Florida Administrative Code Rule 28-5.211, which purported to allow an agency or hearing officer to dismiss a proceeding or enter a default as a sanction for failure to comply with a procedural order, was invalid).

1988See also Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), finding Rule 28-5.211 to be invalid to the extent that it proposed to allow an agency or hearing officer to dismiss a proceeding or enter default as a sanction for failure to comply with a procedural order, based on the holding in Great American Banks.

1983City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975). [2] person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule or to provide the minimum public information required by s. 120.53.

1977Sec. 659.56, Fla. Stat. (1975); National Bank of Tampa v. Green, 175 So.2d 545 (Fla. 1st DCA 1965), cert. den., 183 So.2d 215 (Fla. 1965). [6] An agency may by rule confine party status to those whose participation is assured by the APA and "authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties." Sec. 120.52(10)(c); City of Key West v. Askew, 324 So.2d 655, 659 (Fla. 1st DCA 1976). [7] McDonald v. Dep't of Banking and Finance, supra n. 3. [8] McLean v. McLean, 340 So.2d 493 (Fla. 1st DCA 1976); Waltham A. Condominium Ass'n v. Village

2026Helseth v. Du Bose, 99 Fla. 812, 816 (1930))). 11 statutory language that is clear and unequivocal, as it is ‘the province of the political branches, not the courts, to weigh the costs and benefits of exposing the government to civil litigation.’ Because the Whistleblower’s Act does not clearly and unequivocally waive sovereign immunity to authorize the recovery of noneconomic damages, the trial court erred by denying the Agency's motion to dismiss Toal’s claim for such relief.” (quoting Robinson v. U.S. Dep’t of Educ., 917 F. 3d 799, 801 (4th Cir. 2019))).

2026Helseth v. Du Bose, 99 Fla. 812, 816 (1930))). 11 statutory language that is clear and unequivocal, as it is ‘the province of the political branches, not the courts, to weigh the costs and benefits of exposing the government to civil litigation.’ Because the Whistleblower’s Act does not clearly and unequivocally waive sovereign immunity to authorize the recovery of noneconomic damages, the trial court erred by denying the Agency's motion to dismiss Toal’s claim for such relief.” (quoting Robinson v. U.S. Dep’t of Educ., 917 F. 3d 799, 801 (4th Cir. 2019))).

2026Regul., Div. of Alcoholic Beverages & Tobacco, 295 So. 3d 850 , 855 (Fla. 1st DCA 2020) (reversing an ALJ order after finding that Agency’s rule improperly enlarges, modifies, or contravenes Florida Law); G.B., 143 So. 3d at 457 (reversing an ALJ order finding a rule valid where the rule expanded and contravened the law implemented).

2022The Licensee was also not afforded the opportunity to “present evidence in opposition” to the Board’s action as we required in Rodriguez v. Department of Business & Professional Regulation, 985 So. 2d 682, 684 (Fla. 4th DCA 2008) (“Without any evidence, the Board’s decision cannot stand.”); see also § 120.57(2)(a)2., Fla. Stat. (2016) (parties or their counsel must be given “the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency[.]” (emphasis added)).

2014Analysis An agency may not propose or create a rule that “enlarges, modifies, or contravenes the specific provisions of ... the language of the enabling statute.” § 120.52(8)(c), (9), Fla. Stat. It is not enough that the Agency’s rule is “reasonably related” to the Legislature’s purpose or statutory provisions. § 120.536(1), Fla. Stat. The Agency’s rule and interpretation must comport with the specific authorizing statute. § 120.536(1), Fla. Stat.; State, Dep’t of Children & Family Sens, v. I.B., 891 So.2d 1168, 1171 (Fla. 1st DCA 2005) (“No agency shall have authority to adopt a rule only bec

2013Du Pont De Nemours & Co., 48 So.3d 976, 996 (Fla. 3d DCA 2010) (analyzing pleadings and determining that both the claim and defense were sufficiently evident from pleadings and record, and rejecting the theory that failure to plead a specific theory barred recovery).

2013Ass’n, 89 So.3d 264, 267-68 (Fla. 3d DCA 2012) (disagreeing with dissent that agency was not raised by the pleadings and finding that the defendant “invited the agency analysis through its own vague pleading of affirmative defenses” even though there was no mention or specific reference to any type of agency theory in the pleadings); Agrofollajes, S.A. v. E.I.

2011See, e.g., Citrus County v. Florida Rock Indus., 726 So.2d 383, 388 (Fla. 5th DCA 1999) (“There is no single test to be applied to determine if the requirements of procedural due process have been met.”).

2007Accordingly, under this court's precedent in Brookwood-Walton County Convalescent Center v. Agency for Health Care Administration, 845 So.2d 223, 229 (Fla. 1st DCA 2003), we reverse the final order under review and remand for further proceedings consistent with this opinion.