State agencies write the rules that govern licensed professionals and businesses every day. Very few of those rules are ever tested. A rule that goes unchallenged operates exactly like a statute — it sets the standard, it supports the penalty, and it is enforced as written — whether or not the Legislature actually authorized it.
“Those who can afford sophisticated lawyers may be able to muddle through… But what about everyday Americans and the rights promised to them in our Declaration of Independence, Constitution, and Bill of Rights?…Our government and laws were meant to serve them, not the other way around.”
–Neil Gorsuch, Over Ruled: The Human Toll of Too Much Law (2024)
Florida’s Administrative Procedure Act permits an agency to adopt a rule only where the Legislature has granted it authority to regulate the subject, and only where a specific law exists for the rule to implement. Section 120.52(8) says it directly:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required.
An agency may not adopt a rule simply because the rule seems reasonably related to the purpose of its enabling legislation. A rule is an invalid exercise of delegated legislative authority if the agency exceeded its grant of rulemaking authority, if the rule enlarges, modifies, or contravenes the specific law it claims to implement, if it is vague or vests unbridled discretion in the agency, if it is arbitrary or capricious, or if the agency materially failed to follow required rulemaking procedures.
Agencies also apply internal policies, guidance documents, handbooks, and enforcement matrices that were never adopted through rulemaking at all. Florida law calls these unadopted rules, and they are separately challengeable. If an administrative law judge determines that an agency statement is an unadopted rule, the agency must immediately discontinue all reliance upon it as a basis for agency action.
This matters more than it sounds. Penalty schedules and enforcement guidelines are frequently applied to licensees without ever having gone through the notice, hearing, and adoption process the statute requires.
Rule challenges do not go through the agency. A petition is filed directly with the Division of Administrative Hearings, and the process is unusually fast:
The hearing is de novo. The standard is a preponderance of the evidence. And critically — the administrative law judge’s order is final agency action. The agency whose rule is being challenged does not get to review, modify, or reject the decision. A rule declared invalid becomes void.
An existing rule may be challenged at any time while it remains in effect. Bringing a rule challenge is not a prerequisite to other relief, and choosing not to bring one does not waive any other remedy.
Any person substantially affected by a rule, a proposed rule, or an unadopted agency statement. In practice that means licensees, applicants, providers, and the associations that represent them.
We challenged and invalidated Florida Administrative Code Rule 65C-16.002(5)(c) — the “kinship rule” — which the Department of Children and Families had applied since 2003.
Our clients had fostered a child from the day she left the hospital after birth. When they applied to adopt her, so did a relative five degrees of consanguinity removed, whom the case manager had observed with the child once. The Department’s own case management social worker recommended our clients. So did the Guardian ad Litem. The Department denied our clients’ application and approved the relative’s, relying on a rule that elevated a relative’s application over that of long-term foster parents.
In Case No. 23-4842RX, the Division of Administrative Hearings held the rule invalid on every ground we raised: the Department had exceeded its grant of rulemaking authority, the rule enlarged, modified, or contravened the statutes it purported to implement, and it failed to establish adequate standards for agency decisions. A rule that had operated for more than twenty years, and that had been used to move children out of the only homes they had known, was declared void.
The Department has since rewritten and readopted the rule. We are currently litigating the validity of the new version.
Rule challenges (and other administrative petitions) are administrative litigation, and they are governed by a body of law most family lawyers never touch. Katie Jay is board certified by The Florida Bar in State and Federal Government and Administrative Practice — the Bar’s credential for lawyers whose work is the law of agencies. Board certification is Florida’s official determination that a lawyer has attained expertise in a specialty field, conferred under a plan established by the Florida Supreme Court and awarded only after peer review, heightened continuing education, and a comprehensive examination.
