FLAMINGO LAKE RV RESORT, INC., APPELLANT,
v.
DEPARTMENT OF TRANSPORTATION, APPELLEE
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Flamingo Lake RV Resort applied to participate in the Department of Transportation's logo sign program at an interstate interchange but was denied. The court reversed the denial, holding that the department improperly relied on an unwritten policy to contradict what a properly promulgated administrative rule explicitly authorized.
The court held that the department's reliance on an incipient nonrule policy was improper and that no authority legitimizes an agency's adoption of a nonrule policy which takes away that which a properly promulgated rule explicitly provides. The court reversed the final order and remanded with directions to grant the application.
[1] An agency may not adopt a nonrule policy that contradicts a properly promulgated rule.
[2] An agency must present evidence to support its determination that placing sign panels at specific interchanges is contrary to the legislative purpose of the governing sta…
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Join FLexlaw to unlock all legal intelligence“we know of no authority that would legitimize an agency's adoption of a nonrule policy which takes away that which a properly promulgated rule explicitly provides”
Core holding establishing that agencies cannot use informal policies to contradict valid administrative rules
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Join FLexlaw to unlock all legal intelligenceFlamingo Lake operated a camping facility in Duval County at the interchange of I-295 and State Road 115. It applied to participate in the DOT's logo …
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ERVIN, Judge.
Appellee’s motion for rehearing is granted. Our opinion filed April 8, 1992 is withdrawn, and the following opinion is substituted therefor. Appellant, Flamingo Lake RV Resort, Inc. (“Flamingo Lake”), operates a camping facility in Duval County at the interchange of 1-295 and State Road 115 (Lem Turner Road). Flamingo Lake applied to the Department of Transportation (the department), pursuant to Section 479.26, Florida Statutes (Supp.1990), and Florida Administrative Code Chapter 14-85, to participate in the logo sign program at the interchange. The department denied the application. After an administrative hearing, the hearing officer recommended denial of the application, and the department issued a final order denying the application. We reverse and remand.
The hearing officer concluded that Flamingo Lake qualified for the program under former rule 14-85.003(10), but that the rule was amended and replaced by rule 14-85.-003(15), which eliminated Flamingo Lake’s eligibility as a “rural interchange” for the logo sign program, on March 20, 1991, the day following the hearing at bar. In its final order, the department adopted the hearing officer’s findings of fact and conclusions of law, but indicated that the amended rule did not apply retroactively to Flamingo Lake’s application. Sexton Cove Estates, Inc. v. Pollution Control Bd., 325 So. 2d 468, 470 (Fla. 1st DCA 1976); Gulf Stream Park Racing Ass’n, Inc. v. Division of Pari-Mutuel Wagering, Dep’t of Business Reg., 407 So. 2d 263, 265 (Fla. 3d DCA 1981). Nevertheless, the department relied upon an incipient nonrule policy that prohibits logo sign panels from being erected at any interchange on 1-295.
Section 479.26(2)(a) authorizes the department to determine “not to permit specific information panels in areas where the department deems their placement would be contrary to the overall purpose of this chapter as provided for in s. 479.015." (Emphasis added.) The department presented no evidence that placing sign panels at interchanges along 1-295 would be contrary to the legislative intent contained in Section 479.015, Florida Statutes (1989). Moreover, we know of no authority that would legitimize an agency’s adoption of a nonrule policy which takes away that which a properly promulgated rule explicitly provides.
Accordingly, we REVERSE the final order and REMAND this case with directions to the department to grant Flamingo Lake’s application to participate in the logo sign program.1
BOOTH and ZEHMER, JJ., concur. . In so holding, we note that Section 479.26(3), Florida Statutes (Supp.1990), provides that the department may adopt a procedure permitting a private business to “pay the initial cost for the erection of information panels.”
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Cleveland Clinic Fla. Hosp. v. Agency FOR Health Care Admin., 679 So. 2d 1237 (Fla. 1st DCA 1996)…verning statutes, that is, to simply “change its mind,” there is no good [*1242] reason why the agency’s abrupt change of established policy, practice and procedure should be sanctioned. Flamingo Lake RV Resort, Inc. v. Department of Transportation, 599 So. 2d 732 (Fla. 1st DCA 1992). Without question, an agency must follow its own rules, Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 493 So. 2d 1055 (Fla. 1st DCA 1986), but if the rule, as it plainly reads, should pr…
Authorities Cited
- Gulfstream Park Racing Ass'n, Inc. v. Division OF Pari-Mutuel Wagering, 407 So. 2d 263 (Fla. 3d DCA 1981)
- Sexton Cove Ests., Inc. v. State of Fla. Pollution Control Bd., 325 So. 2d 468 (Fla. 1st DCA 1976)